










































































































































































































































































































































































































4 







Book_> O y .5 4 


W\(e 

G P 0 


















DEDICATED 


TO THE 

Trustees of Marietta College 



Israel Ward Andrews. 





















MANUAL 

OP THE CONSTITUTION 

OF THE 

UNITED STATES 


BY 

ISRAEL WARD ANDREWS, D.D., LL.D. 



AMERICAN BOOK COMPANY 


CHICAGO 


NEW YORK 


CINCINNATI 


JVU5I 


\<\\l0 




Copyright, 1887, by 

VAN ANTWERP, BRAGG & CO. 

Copyright, 1900, 19x2, 19x6, by 

AMERICAN BOOK COMPANY 


Entered at Stationers’ Hall, London 


AND. MAN. CON. 


E. P . 16 






PREFACE 



HE development of Civil Government in the United 


-L States during the past twenty-five years has rendered 
necessary the thorough revision and resetting of Andrews’s 
Manual of the Constitution—a text-book which, in spite of 
numerous competitors published during the past decade, has 
continually increased in favor with teachers and students. 

The book has been brought up to date in all particulars— 
including especially the more recent interpretations of the 
Constitution by the courts, and the important statutes cal¬ 
culated to produce permanent political effect. The utmost 
care, however, has been taken to keep to the original design 
of the book ; and those familiar with the work will find that 
no violence has been done to its original character. 

Andrews’s Manual grew out of the necessities and experi¬ 
ences of the classroom. For the proper instruction of the 
student in the important subject of Civil Government, a clear 
exposition of the great principles of the Constitution is 
needed, with a summary of the legislative provisions in which 
they have been embodied. When the author took charge of 
this department of study in Marietta College , 1 he found him¬ 
self embarrassed by the lack of suitable text-books meeting 
either of these requirements, especially the latter. Questions 
were continually suggesting themselves to which answers 
could be obtained only after laborious research and the study 
of scattered volumes. 

1 Dr. Andrews was connected with Marietta College for fifty years ; he was made pres¬ 
ident of it in 1855, and died in 1888. 


5 


6 


PREFACE 


Urged on by a deep interest in the subject, and availing 
himself of the unusual facilities for the prosecution of studies 
of this character furnished by the library of the College, the 
author entered upon a somewhat extended investigation of 
our governmental history. The materials thus accumulated, 
having for some years furnished the basis for instruction by 
lectures, were condensed into this form, and given to the 
public in the hope that other instructors might be in some 
measure relieved from the excessive labor which similar per¬ 
sonal examination would involve. 

While the primary object was to provide a suitable text¬ 
book, adequate to all the requirements of the study, a con¬ 
viction that a knowledge of our government can not be too 
widely diffused, and that large numbers would welcome a 
good work on this subject, led to the attempt to make the 
volume a manual adapted also for consultation and reference 
by the general public. With this end in view the author em¬ 
bodied in the work that kind—and, so far as space would 
allow, that amount—of information on the various topics 
which an intelligent citizen would desire to possess. 

As the value of a work of this kind depends in large meas¬ 
ure upon its accuracy, it is proper to say that in nearly every 
instance the statements touching the legislation or other ac¬ 
tion of the government have been taken from official publica¬ 
tions. 


CONTENTS 


CHAPTER I. 

TARt; 

Civil Government—Its Object, Origin, and Nature—Different Forms 
of Government—Peculiarity of that of the United States—Not a 
Consolidated Republic nor a League of States, .... 9 

CHAPTER II. 

The Colonial Governments—Royal, Proprietary, and Charter—The 
Causes of the Revolution—The Continental Congress—The Dec¬ 
laration of Independence,.23 

CHAPTER III. 

The Articles of Confederation—Their Failure—The Convention to 

Form a Constitution,.35 

CHAPTER IV. 

The Constitution of the United States.44 

Article I. The Legislative Department, . . . . 47 

Article II The Executive Department, . . .106 

Article III The Judiciary, ....... 201 

Article IV. Various Subjects,.230 

Article V. Mode of Amending the Constitution, . . .251 

Article VI. Supremacy of the Constitution, .... 258 

Article VII. Ratification of the Constitution, .... 261 

Amendments to the Constitution,.265 

7 







8 


CONTENTS 


CHAPTER V. 

PAGE 

The Ratification of the Constitution by Conventions in the Several 

States,.286 

CHAPTER VI. 

The Admission of New States—The Territorial Governments, . 296 

CHAPTER VII. 

Practical Operation of the Constitution,.321 

CHAPTER VIII. 

The State Governments,.355 

APPENDIX. 

List of Vice Presidents, Cabinet Officers, etc., . . . (377) i 

The Declaration of Independence,. xvii 

Articles of Confederation,. xxi 

Ordinance of 1787, ....... xxvii 

Constitution of the United States, ...... xxxii 

index,. xlv 










MANUAL OF THE CONSTITUTION 


CHAPTER I. 

Civil Government—Its Object, Origin, and Nature — Different 
Forms of Government—Peculiarity of that of the United 
States—Not a Consolidated Republic nor a League of States. 

Knowledge of our Government.—A knowledge of the na¬ 
ture and operation of the government under which we live is 
necessary for the successful prosecution of the business of life, 
and to secure the happiness of ourselves and of those depend¬ 
ent upon us. We can thus adapt ourselves to the circum¬ 
stances in which we are placed, and avoid those perplexities 
and difficulties in which one ignorant of the laws and institu¬ 
tions of his country is liable to be involved. The fact that a 
man is subject to a government is a sufficient reason for study¬ 
ing its character and workings, although he may have no 
participation in its management. 

In a republican government the importance of such knowl¬ 
edge is still greater, because the people are not only amenable 
to the laws, but also have a voice in electing those who make 
and execute them. He who lives under a despotism should 
acquaint himself with its character and workings for his own 
protection ; a citizen of a republic should do the same, because 
he is to some extent responsible for the government. 

Two circumstances facilitate the acquisition of a competent 
knowledge of our government. First, our national existence 
extends over a comparatively brief period. But little more 
than a hundred years have passed since we became an inde- 



10 


CIVIL GOVERNMENT 


pendent people, while most of the civilized nations of the 
world have had a long and checkered history. Secondly, our 
Constitution is a written instrument, framed with the utmost 
care, and adopted by the people after the most careful delib¬ 
eration. No other nation has a constitution that can compare 
with it, either in its comprehensiveness and completeness of 
subject, or in the precision of its language. 

The Object of Civil Government can not be better expressed 
than in the words of our Constitution. It is to “ establish 
justice, insure domestic tranquillity, provide for the common 
defense, promote the general welfare, and secure the blessings 
of liberty.” These were the express ends to secure which the 
people of the United States ordained and established our na¬ 
tional Constitution. These are the ends which all govern¬ 
ments, of whatever form, are under obligation to seek. Civil 
governments are not established for the good of the rulers, but 
for the good of the people. They are not for the good of one 
or a few, at the expense of the others, but for the good of all. 

Government a Necessity.—The general good could not be 
secured without government. Civil government is thus a 
necessity. Without it, justice could not be established, nor 
domestic tranquillity insured, nor the common defense pro¬ 
vided for, nor the general welfare promoted, nor the blessings 
of liberty secured. Law is the guardian of liberty. Without 
law there would be no liberty, but in its stead, anarchy. One 
object of civil government is to protect us in our rights. It 
does this by restraining those who would interfere with these 
rights. Civil government is thus rendered necessary by the 
disposition of some to do wrong to others, and it can not be 
dispensed with so long as this disposition to interfere with the 
rights of others continues. 

But government is not merely repressive. Its necessity is 
not wholly owing to the fact that there are wicked men in 
every community. Law and government are essential for the 
good as well as for the bad. The “general welfare ” is to be 


OBJECT OF GOVERNMENT 


11 


promoted, as well as the individual to be protected in his 
rights. There are many things to be done for the advance¬ 
ment of a nation, which could not be done without that com¬ 
bination and cooperation which are found only in govern¬ 
ments. Science and art are to be fostered, education is to be 
encouraged, civilization to be advanced. Government has 
thus more to do than to restrain violence, to redress wrongs, 
and to punish the transgressor. There is government in 
heaven as well as on earth. 

Government not a Necessary Evil_It is sometimes said 

that government is a necessary evil; and that that govern¬ 
ment is best which governs least. The tendency of such 
language is to excite distrust and aversion, whereas govern¬ 
ments should be respected, obeyed, and loved. A govern¬ 
ment founded in justice and administered with wisdom is 
always a good. Were government a necessary evil, it would 
be impossible to account for the existence and strength of 
patriotism. The love of country, which is stronger than the 
love of kindred, or any other of the natural affections, is itself 
a proof that by nature we regard government as a good and 
not as an evil. There may be abuses, but men look forward 
to the time when they will be remedied. That is not the best 
government which governs least; though, other things being 
equal, that may be the best which makes the least show of 
governing. A wise ruler, whether in the family or the state, 
will never give needless prominence to the fact that he is a 
ruler, while an unwise ruler is disposed to make a display of 
his authority. In a good government, if the law is broken 
punishment must follow ; but the better the government, the 
less will be the tendency to break the law, and therefore the 
less the necessity of inflicting punishment. In a well-regu¬ 
lated school or family we see no manifestation of government, 
and apparently no government is needed ; but this apparent 
absence of government is itself a proof of the excellent man¬ 
ner in which the government is administered. 


12 


CIVIL GOVERNMENT 


Society the Natural State.—Society is the natural state of 
man. His whole constitution shows that the intention of his 
Maker was that he should live in society and under govern¬ 
ment. History testifies that such has been the case from the 
beginning. In every age, and in every part of the earth, men 
have lived together in families, tribes, nations. They have 
been under some authority. Civil society is thus a universal 
fact. It is not the result of any agreement among men, but 
it is the natural working out of the human constitution. We 
are born into the nation as into the family. We do not make 
society,—we find it already existing. We are to obey the laws 
of the land because they are the laws, just as the child is to 
obey the law of the family. In neither case is any consent 
asked. 

Civil Authority not from any Compact.—It is not correct 
to say that civil society derives its authority through any com¬ 
pact or agreement, for then the power possessed by society 
would be limited to that received from the individual men 
composing the society. But the powers of government include 
those which never belonged to the individual man, and there¬ 
fore could never have been conferred by him upon society. 
Indeed, if there ever was a state of nature, as some have sup¬ 
posed, prior to the existence of civil society, when men lived 
without government, all possessing equal rights, there could 
manifestly have been no right to govern, since no one could 
have had authority over another who was his equal. Men can 
not give what they do not possess, and society could never 
obtain its right to govern from the individual citizens, since 
they never had such a right. 

Suppose, however, that this idea of a state of nature ante¬ 
cedent to civil society were fact and not fiction, and that men 
lived without government, all possessing equal rights ; what 
is to be done with those who do not choose to give up their 
rights ? Plainly, the majority could have no authority to 
coerce the minority, and government would be an impossi- 


ORIGIN OF GOVERNMENT 


13 


bility. Nor could one generation bind the one succeeding it; 
and each newborn citizen would be rightfully independent 
of all governmental control until his individual rights should 
be voluntarily deposited in the common stock. 

The authority of civil society is not, then, derived from 
the individual citizens composing that society. They sur¬ 
render nothing ; society receives nothing. The fallacy in 
the theory of the “ social compact/’ considered as an expla¬ 
nation of the origin of civil government, consists in con¬ 
founding men as individuals with men as constituting a 
community. Wherever an independent community of men 
can be found, there is already civil society. There is no ne¬ 
cessity for men to surrender a part of their rights in order to 
form a basis for authority ; the authority exists without any 
such surrender. In society, man has all the rights which he 
could have in any state of nature, if any such state of nature 
out of society can be conceived of. As has already been said, 
society is the natural state of man. 

Society of Divine Origin.—It appears from the above 
that society is of divine origin. It is the intention of our 
Creator that we should live in society and under government, 
as it is that the race should be grouped into families, and the 
child be subject to his parents. “ The powers that be are 
ordained of God.” “ There is no power but of God.” No 
individual man has any divine right to be a king ; but as 
civil government is of divine origin, society has a divine 
right to have rulers. Whoever, therefore, exercises legiti¬ 
mately any function of the civil ruler, whether he be king 
or president, legislator or judge, is exercising an authority 
which is as divine in its origin as is the authority of a parent 
over his child. 

Civil authority is of divine origin, and it is lodged in the 
people. It is held by the nation as a whole, and not by the 
people as individuals. Society is not a congress of sovereigns. 
The power of society does not come from the individual 


14 


CIVIL GOVERNMENT 


members, but it belongs to the nation as such. The nation 
receives it from God, as a parent receives from God his right 
to govern his children. If we suppose that civil society pos¬ 
sesses no authority except what has been imparted to it by 
the individual members, it follows, as we have already seen, 
that government can not be extended over those who have 
not surrendered their share of sovereignty. In such a case, 
majorities would have no right to control minorities. The 
supposition that civil government rests upon individual sov¬ 
ereignty would thus virtually destroy all governmental au¬ 
thority. 

The Power of Society Limited.—It may be thought that 
the theory that the authority is in the community —the peo¬ 
ple as a whole—would lead to the other extreme of a social 
despotism. But, although the sovereignty is in the people 
collectively, they have no right to exercise any authority 
which God has not bestowed upon them. The parent has 
no right to govern his child except for the child's good; 
neither has the nation any right to do anything which is not 
for the good of the people. Each member of the community 
has inalienable rights, with which society has no right to in¬ 
terfere. It is not claimed that all rights come from the 
state; many do, but some do not. Some belong to man as 
man. Humanly speaking, the sovereignty is in the nation— 
the people collectively. But this sovereignty is not absolute ; 
it must be exercised in subordination to a higher sovereignty 
which recognizes the dignity and worth of the human being. 

What is a Sovereign Nation?—A political community, 
independent of all others, framing its own constitution, and 
enacting its own laws without hinderance or question from 
any other community—in short, a body politic, with no po¬ 
litical superior, is a sovereign state or nation. 1 France and 

1 The word state is used by writers on government to signify a separate political com ¬ 
munity ; it is synonymous with nation. In the United States it is also applied to a 
member of the American Union. In this volume, when used in the former sense, it 
will be written state; when in the latter sense, State. 


POLITICAL SOVEREIGNTY 


15 


Great Britain are sovereign nations ; so is the United States. 
The sovereignty is in the state , as distinct from the govern¬ 
ment of the state. The people collectively constitute the 
state ; the body of men who for the time being are invested 
by the state with civil authority constitute the government. 
The political society exists as an historical fact; thus exist¬ 
ing, it frames for itself a constitution and adopts a govern¬ 
ment. The nation must exist as a separate political 
community before it can give itself a constitution. The 
constitution does not constitute the nation, but only the 
government of the nation. A constitution is an organic law, 
and presupposes a body politic possessing the authority to 
enact such a law. The constitution thus made by a nation 
already existing, prescribes the mode in which the nation 
determines that its governmental affairs shall be managed. 
It is a kind of letter of instructions to those who are to act 
as its ministers in carrying on the government. It is the 
organic law to which all other laws must be conformed. 
The constitution is made by the nation for the guidance of 
the government. The government can not change it, but the 
nation can. 

Distinction between Nation and Government.—This dis¬ 
tinction between the state or nation, on the one hand, and the 
government on the other, is of great importance. The sov¬ 
ereignty is in the nation. As sovereign, the nation may con¬ 
stitute the government according to its own judgment, and 
give it such form as it pleases. But the sovereignty is in the 
nation as such, and not in the individual men composing it. 
The will of the nation is expressed in the constitution, which 
is the supreme law until the nation chooses to alter it; and 
this alteration must be made in the mode which the nation 
has itself prescribed in the same organic law. A large major¬ 
ity of the people may disapprove of a clause in the constitu¬ 
tion, but their disapprobation passes for nothing until the 
obnoxious clause is constitutionally removed from the consti- 


16 


CIVIL GOVERNMENT 


tution. The same is true of the laws of a country. They are 
supposed to be valid until repealed. The constitution is 
made by the people, and the laws by the government; but 
both are in force until changed or repealed by the power that 
enacted them. The people as a whole do not make the laws ; 
the government does not make the constitution. 

The Constitution Twofold.—Some writers distinguish be¬ 
tween the constitution of the nation and that of the govern¬ 
ment. Jameson calls the first a constitution considered as an 
objective fact. It is the “ make-up of the commonwealth as a 
political organism ; that special adjustment of instrumentali¬ 
ties, powers, and functions, by which its form and operation 
are determined.” The second is a constitution considered as 
an instrument of evidence . 1 Brownson says, “ The constitu¬ 
tion is twofold ; the constitution of the state or nation, and 
the constitution of the government. The constitution of the 
government is, or is held to be, the work of the nation itself; 
the constitution of the state, or of the people of the state, is, 
in its origin at least, providential, given by God himself, oper¬ 
ating through historical events or natural causes. The one 
originates in law, the other in historical fact.” 2 

The constitution of the nation is unwritten. The constitu¬ 
tion of the government may be written or unwritten. The 
constitution of the nation is its character—what it is, at any 
epoch. The constitution of the government is what the na¬ 
tion chooses to make it. As the nation changes, its constitu¬ 
tion changes accordingly ; and the nation should change its 
governmental constitution from time to time, to make it cor¬ 
respond with the real constitution. The American nation 
was in existence a number of years before it formed a written 
governmental constitution. The present constitution, which 
went into operation in 1789, has received slight modifica¬ 
tions at different times, and will continue to be modified in 


1 Jameson’s Constitutional Convention, page 66. 
* Brownsou's American Republic, page 138. 


FORMS OF GOVERNMENT 


17 


Inture years, as the character of the nation itself is changed. 
We shall see, when the mode of amending the Constitution 
comes to be considered, that most ample provision has been 
made against hasty alterations in that instrument. Indeed, 
there is more reason to apprehend that needed changes will 
be delayed too long than that those which are unnecessary 
will be introduced. 

Forms of Government.—There are various forms of gov¬ 
ernment, differing from one another more or less widely. In 
a monarchy , the ruler is a single person. An aristocracy is a 
form of government in which the authority is held by a few. 
In a democracy , the power is exercised by the people them¬ 
selves. But most existing governments combine two or more 
of these forms. 

Monarchy.—In a monarchy, the whole authority is not 
necessarily in a single person. Most of the governments of 
Europe are called monarchies ; but in some of them the king 
has less power than the President of the United States. An 
absolute monarchy is a despotism. The monarch governs 
according to his own will and caprice, and not according to 
established laws. Such a government is clearly illegitimate. 
It is a government of force. In a limited monarchy, the 
king, prince, or emperor, or whatever he may be called, 
though nominally the sovereign, wields a power more or less 
restricted. Great Britain and all the provinces subject to it 
are called His Majesty’s Dominions. The government is 
carried on in the sovereign’s name. The army and navy are 
called His Majesty’s troops and ships. But at the same time 
his real power is small. The laws are enacted by Parliament, 
and they are administered by the ministers, who are called His 
Majesty’s government. Parliament is composed of two houses : 
the House of Lords, which is chiefly hereditary, and the House 
of Commons, which is elective. 

Republic; Democracy—A republic is properly a common¬ 
wealth. The domain belongs to the nation rather than to the 
A. C.—2 


18 


CIVIL GOVERNMENT 


king or the nobles. It is a government in which the authority 
is exercised by the representatives of the people. It differs 
from a democracy in this, that in the latter the power is ex¬ 
ercised by the people themselves, while in the former the 
people elect representatives to act for them. A pure democ¬ 
racy can exist only in a small territory, where all the people 
can meet and enact laws. A republic may be democratic or 
aristocratic. If suffrage is universal, if the rulers are elected 
by the whole people, the government is a democratic republic. 
In proportion as suffrage is restricted and the number of 
voters diminished, the government becomes less democratic 
and more aristocratic. 

Mixed Governments.—Most existing governments are, to 
some extent, republican, although at the same time monar¬ 
chical. The monarchs of Great Britain rule by hereditary 
right; most of the members of the House of Lords hold their 
seats by virtue of their birth ; but the members of the House 
of Commons are elected. The government is thus at the 
same time monarchical, aristocratic, and republican; and in 
its republican part it is very democratic, as the suffrage is 
nearly universal. Macaulay calls the Roman emperors re¬ 
publican magistrates named by the Senate. 

Peculiarity of our Government.—Our own government is 
peculiar. John Quincy Adams speaks of it as “ a complicated 
machine. It is an anomaly in the history of the world. It 
is that which distinguishes us from all other nations, ancient 
and modern.” Dr. Brownson says, <( The American Con¬ 
stitution has no prototype in any prior constitution. The 
American form of government can be classed throughout with 
none of the forms of government described by Aristotle, or 
even by later authorities. Aristotle knew only four forms of 
government: monarchy, aristocracy, democracy, and mixed 
governments. The American form is none of these, nor any 
combination of them. It is original, a new contribution to 
political science, and seeks to attain the end of all wise and 


OUR GOVERNMENT PECULIAR 


19 


just government bv means unknown or forbidden to the 
ancients, and which have been but imperfectly comprehended 
even by American political writers themselves .” 1 2 * * * * * * * * * 12 

Our government is not a simple or consolidated republic 
on the one hand, nor, on the other, is it a league of states. 
Many seem to suppose that there is no middle ground between 
these two; that the denial of the one is equivalent to the 
affirmation of the other. The American people constitute 
a nation, with a republican government. The nation has a 
constitution in which the character of the government is, 
clearly delineated. This Constitution is the supreme law of 
the land. But the country is divided into divisions, called 
States, each of which has a constitution. The people of the 
whole nation have made the general Constitution, while the 
people of each State have made a constitution for that politi¬ 
cal division. The national Constitution is operative through¬ 
out the whole domain ; it is binding on all the people. The 
constitution of a State is confined in its operation to the State 
limits ; beyond them it has no force. But within the State it 
is the organic law, whose provisions, unless conflicting with 
the national Constitution or the laws enacted under it, must 
be carried out. Were the government a league of states, there 
could be no supreme national government; were the nation a 


1 Brownson, page 5 . 

2 It is a noteworthy fact that the system that we have of dividing the sovereignty 

and jurisdiction of government, as to subject matter, between the States and the 

United States, making the States supreme over their respective territories and in¬ 

habitants as to certain subjects of power, and the United States supreme over the . 

whole territory and all inhabitants as to the subjects of power confided to it, is some¬ 

what like the system of government of the Five Nations, or Iroquois Nation, which 

originally inhabited New York. The government inaugurated under the Articles of 

Confederation was still more like the Iroquois form in that it embodied the distinctive 

feature of reliance upon moral force alone to enforce obedience to the federal authority 

by the local erovernments and the inhabitants. The Iroquois were the most powerful 
Ind an tribe with which the English settlers came in contact, and this remarkable feature 

of their system of government, and its wonderful efficiency, excited much attention and 
caused it to be described by pre-revolutionary writers. The framers of the Constitution 
must have been conversant with this Indian government, and they may have received 
from this humble source some important suggestions for the system they adopted. 


20 


CIVIL GOVERNMENT 


consolidated republic, there could be no State constitutions. 
Unquestionably, the American people are a single people, a 
nation in the same sense, and just as truly, as the people of 
France. But at the same time the national Constitution 
everywhere recognizes the existence of the States, with their 
separate constitutions and their various departments. 

State and Nation not like County and State. —Were our 
government a simple republic, we should have no laws except 
those enacted at Washington. In that case, a State would 
bear to the nation the same relation that a county does to a 
State, as is sometimes affirmed to be the case now. But the 
statement is incorrect. A county can do nothing politically 
which it is not authorized by the State to do. A State can do 
anything politically which does not contravene a law or the 
Constitution of the nation. The people of a county, as such, 
have no constitution, and have no power to form one. The 
people of a State have a constitution, and may alter it at 
pleasure, provided its provisions are in harmony with the 
national laws and Constitution. The county originates noth¬ 
ing ; all its power comes to it from a political body above it. 
The State originates everything; its power coming directly 
from the people themselves. 

The Nation and the States Born Together. —Although the 
States have constitutions, and derive their governmental au¬ 
thority from the people, this does not make them sovereign 
states, or the general government a mere confederacy. The 
American people are one people, yet their government is not 
a consolidated one. They exist in States, yet their govern¬ 
ment is not a confederated one. From the day when the 
Declaration of American Independence was made, they have 
existed as a nation, yet grouped into States. The nation and 
the thirteen original States began their existence together. 
Neither preceded, neither followed. The American people 
“have not, as an independent sovereign people, either estab¬ 
lished their union, or distributed themselves into distinct and 


THE POWERS OF GOVERNMENT DIVIDED 21 

mutually independent States. The union and the distribu¬ 
tion, the unity and the distinction, are both original in their 
Constitution, and they were born United States as much and 
as truly so as the son of a citizen is born a citizen, or as every 
one born at all is born a member of society, the family, the 
tribe, or the nation. The Union and the States were born 
together, are inseparable in their constitution, have lived and 
grown together ; and no serious attempt till the late secession 
movement has been made to separate them .” 1 

The Powers of Government Divided_“ Say the people of 

the United States are one people, in all respects, and under 
a government which is neither a consolidated nor a confed¬ 
erated government, nor yet a mixture of the two, but one in 
which the powers of government are divided between a gen¬ 
eral government and particular governments, each emanating 
from the same source, and you will have the simple fact .” 2 
“ Strictly speaking, the government is one, and its powers 
only are divided and exercised by two sets of agents or minis¬ 
tries .” 3 To the same purpose Jameson : “ And here I may 
remark that the Constitution of the United States is a part of 
the constitution of each State, whether referred to in it or 
not, and that the constitutions of all the States form a part 
of the Constitution of the United States. An aggregation of 
all these constitutional instruments would be precisely the 
same in principle as a single constitution, which, framed by 
the people of the Union, should define the powers of the gen¬ 
eral government, and then by specific provisions erect the 
separate government of the States, with all their existing at¬ 
tributions and limitations of power .” 4 

One Government in Two Spheres.—No other nation has 
such a distribution of the powers of government. Foreign¬ 
ers almost universally fail to comprehend it, and many of 
our own people find it a perplexing subject. The general 
government and the particular governments together con- 

1 Browuson, page 222. 3 Ibid, page 231. * Ibid, page 250. 4 Jameson, page 8T. 


22 


CIVIL GOVERNMENT 


stitute the government of the United States. The former 
is general, as its care extends to the whole Union ; the gov¬ 
ernments of the States are particular, as limited to the lo¬ 
cal interests of the individual States. The two in combina¬ 
tion form the one supreme national government, or govern¬ 
ment of the United States. It is one government, exercising 
its powers in two different spheres. The authority comes 
from the same people, the people of the United States, in 
whom is the whole sovereignty. As stated above by Judge 
Jameson, the general Constitution and the constitutions of 
the States might be considered as one great instrument. 
There are, first, those articles which are concerned with the 
interests of the whole, and then, in succession, those which 
relate to the particular and local interests of the several States. 

Or w r e may say that the people of each State have two con. 
stitutions ; one local and particular, the other general. The 
latter has been adopted by them in conjunction with the peo. 
pie of the rest of the nation ; the former they have adopted 
by themselves, yet taking care that none of its provisions are 
in conflict with those of the general Constitution. The local 
constitution is no more the constitution of a particular State 
than the general Constitution is. The people of New York, 
by their ratification of the general Constitution, and the peo¬ 
ple of Ohio, by their adoption of it at their entrance into the 
Union, have made it their own as truly as those constitutions 
for the adoption of which they alone voted. Every provision 
of the Constitution of the United States is to be regarded as 
expressing the will of the people of Ohio as much as any pro¬ 
vision of the constitution of that State. There is, thus, no 
legitimate place for conflict between the general government 
and the governments of the States, because they have all 
been formed by the same authority—the people of the nation. 
It was never intended that these should be arrayed against 
each other like political parties, or serve as “ checks and bal¬ 
ances,” after the example of some other governments. 


CHAPTER II. 


The Colonial Governments—Royal, Proprietary, and Charter— 
The Causes of the Revolution—The Continental Congress— 
The Declaration of Independence. 

The Thirteen Colonies. — The colonies which declared 
their independence of Great Britain in 1776, and formed a 
new nation, known from that time as the United States of 
America, were thirteen in number; viz., Massachusetts, 
New Hampshire, Connecticut, Rhode Island, New York, 
New Jersey, Pennsylvania, Delaware, Maryland, Virginia, 
North Carolina, South Carolina, and Georgia. These had 
been settled at various times, from 1607, when the settlement 
of Virginia was commenced at Jamestown, to 1733, when 
the colony of Georgia was established. They were not all 
settled as so many distinct colonies, but various changes had 
taken place among them. Thus, the colony of Massachu¬ 
setts, as it existed at the beginning of the War of the Amer¬ 
ican Revolution, embraced what constituted originally three 
distinct colonies: that of Massachusetts Bay, that of New 
Plymouth, and the province of Maine. 1 The colony of New 
Haven had been merged in 1665 in that of Connecticut. 
The Carolinas, on the other hand, had been divided ; and 
what was at first a single colony, under the name of Carolina, 
was made two in 1732, and the divisions were called by the 
present names of North Carolina and South Carolina. 

Title from Discovery.—All the lands were held by titles 
coming from the English or British crown, which claimed 

1 These were incorporated into one by a charter granted by William and Mary in 1691, 
under the name of the Province of the Massachusetts Bay in New England. 

23 


24 


CIVIL GOVERNMENT 


the country by the right of discovery. 1 Near the close of the 
fifteenth century, King Henry VII. had sent out John and 
Sebastian Cabot on voyages of exploration, and they discov¬ 
ered the island of Newfoundland and sailed along the coast 
from the fifty-sixth to the thirty-eighth degree of north lat¬ 
itude. All this territory, in consequence, was claimed to 
belong to England, and by that power grants were made 
from time to time to companies and to individual proprietors. 
Under the charters and patents thus granted, settlements 
were made and local governments were established. The 
colonies all acknowledged allegiance to the mother country, 
while they had no direct political connection with one an¬ 
other. 

Provincial or Royal Governments. —The colonial govern¬ 
ments have been described by most writers, following the di r 
vision given by Blackstone, as of three kinds: provincial, 
proprietary, and charter. The provincial governments, which 
were often called royal, had a governor and council appoint¬ 
ed by the Crown, and a legislature whose upper house was 
the council, and whose lower house was elected by the people. 
The governor had a negative upon all the proceedings of the 
legislature, and could also prorogue or dissolve it at pleas¬ 
ure. Laws might be enacted not repugnant to the laws of 
England, and subject to the ratification of the Crown. The 
governor, with the advice and consent of the council, could 
establish courts and appoint judges and other officers. 

Proprietary Governments. — In the proprietary govern¬ 
ments, the proprietors appointed the governors, and it was 
under their authority that legislative assemblies were con¬ 
vened. While the proprietors thus exercised those prerog- 

1 This right was held among the European nations to be a sufficient foundation on 
which to rest their respective claims to the American continent. The title from discov¬ 
ery was good against other nations, but it did not of itself extinguish the claim of the 
Indian occupant. It was held, however, that discovery by a nation gave exclusive right 
to extinguish the Indian title either by purchase or conquest. The government of the 
United States has uniformly acted on the same rule. 


THE COLONIAL GOVERNMENTS 


25 


atives which in the royal governments were exercised by the 
Crown, the sovereignty of the mother country was, neverthe¬ 
less, to be strictly maintained. 

Charter Governments. —In the charter governments, the 
people had much more political power. Their relation to 
England was more like that of the citizens of one of our States 
to the nation, while that of the people in the royal govern¬ 
ments was more like that of the people in one of our Terri¬ 
tories. The charter granted to Massachusetts by Charles I. 
gave power to elect annually a governor, deputy governor, 
and eighteen assistants. Four “ great and general courts" 
were to be held every year, to consist of the governor or dep¬ 
uty governor, the assistants, and the freemen. These courts 
were authorized to appoint such officers as they should think 
proper, and also to make such laws and ordinances as to them 
should seem meet, provided they were not contrary to the laws 
of England. Under the charter granted in 1G91 the governor 
was appointed by the Crown. 1 

Connecticut and Rhode Island formed governments for 
themselves, the provisions of which were afterward secured to 
them in charters granted by Charles II. soon after his resto¬ 
ration to the throne. The people of these colonies, by the 
express words of their charters, were entitled to the privileges 
of natural-born subjects, and invested with all the powers of 
government,—legislative, executive, and judicial. The only 
limitation to their legislative power was that their laws should 
not be contrary to those of England. 2 

“ The king and parliament claimed the right to alter and 
revoke these charters at pleasure ; but the colonists, on the 
other hand, denied this right, and claimed them to be solemn 
compacts between them and the Crown, irrevocable unless for¬ 
feited by some act of the grantees. This was a continual 
source of contention between the parent country and the 

i Pitkin’s Pol. and Civ. Hist. U. I, pages 36,120. 

* Pitkin. I., page 54. 


26 


CIVIL GOVERNMENT 


charter colonies, and was one of the causes which finally pro¬ 
duced a separation between the two countries.” 1 

The people of these two colonies were indeed so well satis¬ 
fied with their charters, granted in 1662 and 1663, that they 
continued to live under them long after they had ceased to 
be colonies, and had become States of the American Union. 
Connecticut did not form a State constitution till 1818, nor 
Rhode Island till 1842. 

The Colonies under Each Government. —The colonies which 
had charter governments were, as we have seen, Massachu¬ 
setts, Rhode Island, and Connecticut. 

The royal, or provincial, governments were those of New 
Hampshire, New York, Virginia, and Georgia; to which were 
added New Jersey in 1702, and the Carolinas in 1729, all 
which had previously been under proprietary governments. 

The colonies that continued under proprietary govern¬ 
ments till the Revolution were Pennsylvania, Maryland, and 
Delaware. 

It has been seen that each of the colonies exercised some of 
the powers of government, while none claimed to be independ¬ 
ent of England. For internal regulations, the colonial legis¬ 
latures regarded themselves as having full authority. While 
having no direct political connection with one another, they 
acknowledged a common allegiance to the Crown. They were 
fellow-subjects, and in many respects one people. Every col¬ 
onist could become an inhabitant of any colony. They en¬ 
joyed the rights and privileges of British subjects, and claimed 
a total exemption from all taxation not imposed by their own 
representatives. In the Plymouth Colony, for the first twenty 
years, all the freemen met in “ general court ” and partici¬ 
pated in making laws. In 1639, a house of representatives 
was substituted for the whole body of freemen. In Virginia, 
a general assembly, composed of representatives from the 
various plantations, was called in 1619. This was the first 

1 Pitkin, I., page 55. 


THE COLONIAL GOVERNMENTS 


27 


representative legislature that ever sat in America. Eventu¬ 
ally, all the colonies elected one or both of the branches of 
their provincial legislatures. 

The Union of 1643. —The first union among any of the 
colonies was formed in 1643. It embraced Massachusetts, 
Plymouth, Connecticut, and New Haven, under the name of 
“ The United Colonies of New England.” Their object was 
to defend themselves against the Indians, and also to resist 
the claims and encroachments of the Dutch. 1 This union 
continued till 1686. 

Proposed Union of 1754. —In June, 1754, commissioners 
from seven of the colonies, viz., Massachusetts, New Hamp¬ 
shire, Rhode Island, Connecticut, New York, Pennsylvania, 
and Maryland, met in Albany at the request of the lords com¬ 
missioners for trade. The objects were to “ confirm and 
establish the ancient friendship of the Five Nations,” and to 
consider whether the colonies would “ enter into articles of 
union and confederation with each other for the mutual de¬ 
fense of His Majesty’s subjects and interests in North America 
as well in time of peace as war.” 2 With reference to this end 
the British Secretary of State had suggested that a plan of 
union among the colonies should be formed. At this meet¬ 
ing, after the adoption of a resolution that a union of the 
colonies was absolutely necessary for their preservation, a 
^committee was appointed, consisting of one member from 
each colony, to report a plan of union. One proposed by Dr. 
Franklin, who was a member of the committee, was finally 
adopted by the convention. 

It provided for a general government of all the American 
colonies, to consist of a president-general to be appointed by 
the Crown, and a grand council of delegates, to be chosen 
every three years by the colonial assemblies. The president 
and council were to regulate all affairs with the Indians, to 
make new settlements on lands purchased of the Indians, and 

2 Frothingham’a Rise of the Republic, page 132. 


» Pitkin, I., page 50. 


28 


CIVIL GOVERNMENT 


govern such settlements, to raise soldiers, build forts, and 
equip vessels for guarding the coast and protecting the trade. 
For these purposes, they were to make laws and levy such 
duties and taxes as they might deem just. The president was 
to have a negative on all laws and acts of the council, and to 
see that the laws were executed. 

This plan was adopted by the convention, all the delegates 
voting for it except those from Connecticut. But it never 
went into operation, having failed to obtain the approval 
either of the colonies or of the mother country. “ It had the 
singular fate of being rejected in England because it left too 
much power in the hands of the colonists, and it was disap¬ 
proved in America because it transferred too much power into 
the hands of the Crown.” 1 

Congress of 1765. —In September, 1765, a Congress of del¬ 
egates was held at New York. This was in consequence of the 
passage of the Stamp Act by the British Parliament in March 
of the same year. That body had determined to raise a reve¬ 
nue from the colonies by taxation, although the colonists 
most vehemently protested against it. The passage of the 
Stamp Act, which required all legal documents to be on 
stamped paper furnished by the British government, excited 
universal alarm in the colonies. The colonial assembly of 
Virginia, at a session held soon after the news reached Amer¬ 
ica, adopted resolutions of the most decided character. These 
resolutions were moved and supported by the celebrated Pat¬ 
rick Henry. When, in the heat of debate, he exclaimed, 
“ Caesar had his Brutus, Charles I. his Cromwell, and George 
III.”—he was interrupted by the speaker and others with the 
cry of “ treason.” Pausing a moment, and fixing his eye on 
the speaker, he added—“may profit by their example; if 
this be treason, make the most of it.” 

Meanwhile, Massachusetts had voted that it was desirable 
that a Congress of delegates from all the colonies should be 

1 Pitkin, I., page 146. 


THE CAUSES OE THE REVOLUTION 


29 


held. Accordingly, Massachusetts, Rhode Island, Connecti¬ 
cut, New York, New Jersey, Pennsylvania, Delaware, Mary¬ 
land, and South Carolina elected commissioners, who met 
at New York, as stated above. New Hampshire approved 
of the Congress, but from the peculiar situation of the col¬ 
ony it was judged not prudent to send delegates. Virginia, 
North Carolina, and Georgia were not represented because 
the governors of those colonies refused to call special assem¬ 
blies for the appointment of delegates. 

Action of the Congress. — “ This was the first general 
meeting of the colonies for the purpose of considering their 
rights and privileges, and obtaining a redress for the violation 
of them on the part of the parent country.” 1 They adopted 
a declaration of rights and grievances, which asserted the 
claim of the colonists to all the inherent rights and liberties 
of subjects within the kingdom of Great Britain ; “ that it is 
inseparably essential to the freedom of a people, and the un¬ 
doubted right of Englishmen, that no taxes be imposed on 
them but with their own consent, given personally or by 
their representatives.” 

The First Continental Congress —The Stamp Act was 
subsequently repealed, but other taxes and duties were im¬ 
posed quite as obnoxious to the colonies. Their efforts to 
obtain redress being unsuccessful, it became obvious that 
they must form a closer union for their own protection. 2 In 
1774, Massachusetts recommended the assembling of a Con¬ 
tinental Congress to deliberate upon the state of public af¬ 
fairs. The recommendation was favorably received, and on 
the 5th of September a Congress of delegates from twelve 
colonies assembled at Philadelphia. Of these, some were ap¬ 
pointed by the popular branch of the colonial assembly, while 
others were elected by conventions of the people. Georgia, 

1 Pitkin, I., page 180. 

3 The Stamp Act was repealed March 18,1766. Other taxes were imposed June 29, 
1767. The “ Boston Massacre ” occurred March 6, 1770. Tea destroyed, December, 
1773. Boston port bill passed, March 31,1774. 


30 


CIVIL GOVERNMENT 


the youngest of the colonies, was not represented. This is 
known as “ the First Continental Congress.” 

Among the distinguished members of this Congress were 
John Adams and Samuel Adams of Massachusetts, Roger 
Sherman of Connecticut, John Jay of New York, Peyton 
Randolph, Richard H. Lee, Patrick Henry, and George 
Washington of Virginia. Peyton Randolph was chosen pres¬ 
ident. The first resolution adopted was, “That in deter¬ 
mining questions in this Congress each colony or province 
shall have one vote ; the Congress not being possessed of, or 
at present able to procure, proper materials for ascertaining 
the importance of each colony.” This rule of equal suffrage, 
established because the Congress did not possess the infor¬ 
mation requisite for establishing a more equitable one, re¬ 
mained in force until the present Constitution went into 
operation in 1789. 

The Work of the Congress. —Addresses to the King, to 
the people of Great Britain, to the inhabitants of the col¬ 
onies represented, and to the inhabitants of the province 
of Quebec, were all drawn up with great ability, and were 
spoken of by Lord Chatham in terms of the highest admi¬ 
ration. After recommending that another Congress should 
be held on the 10th of May following, provided that a redress 
of grievances was not previously obtained, this Congress ad¬ 
journed on the 26th of October. That the measures adopted, 
if supported by the American people, would produce a re¬ 
dress of grievances, was the conviction of a majority of the 
members of the Congress. 1 

The Second Continental Congress. —The breach between 
Great Britain and the colonies having become wider, delegates 
were appointed to meet in Philadelphia, May 10th, 1775, 
agreeably to the recommendation of the Congress of 1774. 
Some of these were chosen by conventions of the people, and 
some by the colonial legislatures, as in the case of the previ- 

1 Pitkin, I., page 301. 


THE CONTINENTAL CONGRESS 


31 


ous Congress. With scarcely an exception, the delegates of 
1774 were reappointed in 1775. As before, twelve colonies 
were represented. A delegate also was present from a single 
parish in Georgia, and in July a convention was held in that 
colony, which voted to accede to the general association, and 
appointed delegates to the Congress. This Second Continen¬ 
tal Congress continued its session, with occasional adjourn¬ 
ments, till March, 1781 ; there were then yearly sessions till 
1789. Sometimes, however, the different sessions are spoken 
of as new Congresses ; so that the body which adjourned in 
1789 is called the Fourteenth Continental Congress. 

Hostilities in Massachusetts. —Before the Second Conti¬ 
nental Congress assembled on the 10th of May, hostilities had 
been commenced by the British troops under General Gage. 
One of the first items of business brought before the body 
was a letter from the provincial congress of Massachusetts, 
giving an account of the battles of Lexington and Concord, 
April 19th, with the action of that colony in relation thereto, 
and requesting the direction and assistance of the Congress. 
In this letter is the following suggestion : “ With the great¬ 
est deference, we beg leave to suggest that a powerful army 
on the side of America hath been considered by this Con¬ 
gress as the only means left to stem the rapid progress of a 
tyrannical ministry.” 1 The Continental Congress at once re¬ 
solved itself into a committee of the whole to take into con¬ 
sideration the state of America, and referred this letter from 
Massachusetts to that committee. 

Washington appointed General. —Hostilities having already 
commenced, the necessities of the case compelled this Conti¬ 
nental Congress to take measures to put the country into a 
state of defense, and soon it assumed a virtual control over 
the military operations of all the colonies. An army was or¬ 
ganized, and on the 15th of June, George Washington, a dele¬ 
gate from Virginia, was unanimously elected general of all the 

1 Jour. Cont. Cong., I.. page TT. 


32 


CIVIL GOVERNMENT 


forces. His commission styled him the General and Com¬ 
mander in Chief of the Army of the United Colonies. This 
was the first occasion on which the style, “The United Colo¬ 
nies, ” was adopted ; it continued to be used till the Declara¬ 
tion of Independence substituted the name, “ The United 
States.” 

Government Assumed by Congress. —The action of Con¬ 
gress in providing for raising an army and appointing a com¬ 
mander in chief was in accordance with the general expecta¬ 
tion of the colonies. Congress thus assumed the defense of 
the country. It created a continental currency by issuing 
bills of credit. It established a treasury department, and 
organized a general post office, Dr. Benjamin Franklin being 
the Postmaster-General. In answer to the applications from 
various colonies for advice as to their local governments, Con¬ 
gress recommended that such forms of government be estab¬ 
lished as would best secure good order during the continuance 
of the dispute between Great Britain and the colonies. This 
advice manifestly contemplated the establishment of provi¬ 
sional governments only. This was in November and Decem¬ 
ber, 1775. 

The Question of Separation. —But the question of separa¬ 
tion began to be discussed. On the 22d of April, 1776, the 
convention of North Carolina empowered its delegates in 
Congress “ to concur with those in the other colonies in de¬ 
claring independency. This, it is believed, was the first direct 
public act of any colonial assembly or convention in favor of 
the measure.” 1 On the 15th of May the convention of Vir¬ 
ginia went further, and unanimously instructed its dele¬ 
gates in Congress “ to propose to that respectable body to 
declare the United Colonies free and independent States, ab¬ 
solved from all allegiance or dependence upon the Crown or 
Parliament of Great Britain.” In accordance with these in¬ 
structions, Richard Henry Lee, one of the delegates from Vir- 

1 Pitkin, I., page 860. 


INDEPENDENCE PROPOSED 


33 


ginia, submitted a resolution declaring “that the United 
Colonies are and ought to be free and independent States; 
that they are absolved from all allegiance to the British 
Crown ; and that all political connection between them and 
the state of Great Britain is, and ought to be, totally dis¬ 
solved.” This was on the 7th of June. On the next day it 
was debated in committee of the whole. 

“No question of greater magnitude,” says Mr. Pitkin, 
“ was ever presented to the deliberation of a deliberative body, 
or debated with more energy, eloquence, and ability.” 1 

The resolution was discussed again in committee of the 
whole on the 10th, and adopted. The committee recom¬ 
mended that the further consideration of the resolution be 
postponed till the 1st of July, but meanwhile that a com¬ 
mittee be appointed to draft a declaration of independence. 
This committee consisted of Thomas Jefferson of Virginia, 
John Adams of Massachusetts, Benjamin Franklin of Penn¬ 
sylvania, Roger Sherman of Connecticut, and Robert R. 
Livingston of New York. 

The Declaration of Independence. —The postponement was 
immediately followed by proceedings in the colonies, most of 
which either instructed or authorized their delegates in Con¬ 
gress to vote for the resolution of independence ; and on the 
2d day of July that resolution, which had before been agreed 
to in committee of the whole, was adopted by Congress itself. 
The committee that had been instructed to prepare the dec¬ 
laration, had reported on the 28th of June, and on the 4th 
day of July that paper was adopted. 

After citing reasons for the dissolution of the political 
bands which had connected them with Great Britain, the 
Declaration concludes : “ We, therefore, the representatives 
of the United States of America, in General Congress 
assembled, appealing to the Supreme Judge of the world for 
the rectitude of our intentions, do, in the name and by the 

* Pitkin, I., page 863. 


a. .a—? 


34 


CIVIL GOVERNMENT 


authority of the good people of these colonies, solemnly pub¬ 
lish and declare that these United Colonies are, and of right 
ought to be. Free and Independent States.” 

This was the beginning of the nation. Whether it could 
maintain its independence, thus boldly declared, was to be 
decided by the sword. Should the people fail in the bloody 
struggle, they would never be known as a nation upon the 
page of history. Should they succeed, their national existence 
would date from the Fourth of July, 1776. 

This Declaration of Independence was not the work of 
States, for no States existed. It was the people of the thirteen 
United Colonies who had, through their representatives, de¬ 
clared themselves absolved from their allegiance to Great 
Britain. The nation and the States were born on the same 
day. Hitherto, there had been colonies and the mother coun¬ 
try, to which all the colonists acknowledged allegiance. Now, 
the sovereignty was no longer in Great Britain, but in the 
people themselves, who claimed to be a separate political com¬ 
munity ; and the individual colonies had become States. 
From that day the nation itself, through Congress, exercised 
all the functions of government. There was a real govern¬ 
ment, though as yet no written constitution ; and the rela¬ 
tions of the States to the general government were in sub¬ 
stance the same as they are now. 


CHAPTER III. 


The Articles op Confederation—Their Failure—The Convention 
to Form a Constitution. 

Articles of Confederation —Soon after the Declaration of 
Independence was made, a committee, previously appointed, 
reported a draft of the Articles of Confederation. These 
were debated from time to time, and, after several modifi¬ 
cations, were finally agreed to by Congress, November 15th, 
1777. They were to become binding when ratified by all the 
States. Ten States ratified them in July, 1778 ; New Jer¬ 
sey, November 26th; and Delaware, February 22d, 1779. 
Maryland withheld her approval till March 1st, 1781. This 
was nearly five years after the Declaration of Independence. 
During this time the war had been carried on and all the af¬ 
fairs of the nation had been conducted by Congress. A 
treaty had been made between France and the United States, 
which was concluded at Paris, February 6th, 1778, and rat¬ 
ified by Congress May 4th of that year. Though that was 
before the adoption of the Constitution or of the Articles of 
Confederation and before the formal organization of the gov¬ 
ernment, Congress by these acts exercised some of the high¬ 
est functions of sovereignty. They show that Congress was 
de facto the sovereign power in matters of general concern to 
the whole country. The surrender of Cornwallis, which vir¬ 
tually closed the war, took place on the 17th of October, 
1781, about six months after the adoption of the Articles of 
Confederation. 

Jealousy of the States. —These Articles' were the result 
of the first effort to form a central government. Such a gov- 

35 


36 


CIVIL GOVERNMENT 


ernment had indeed existed from the time of the Declaration 
of Independence, bat it was revolutionary, and Congress had 
governed by the common consent of the people. In attempt¬ 
ing to draw the line between the powers to be exercised by 
the States on the one hand and the general government on 
the other, State influence was strongly predominant. The 
colonies had been independent of one another, and the en¬ 
croachments of Great Britain had led to the revolution. A 
central government at home would in their view take the 
place of that of the mother country, and it was not strange 
that their jealousy of England should in some measure be 
transferred to their own general government. Little power 
was confided to Congress, and this related principally to war. 

The Articles were as erroneous in theory as they were in¬ 
efficient in practice. The Declaration of Independence was 
made in the name of the people of the United States. The 
first sentence refers to them as “one people” that had 
found it necessary to dissolve the political bands which had 
connected them with another people, and to assume among 
the powers of the earth the separate and equal station to 
which they were entitled. The Constitution speaks the same 
language: “ We, the people of the United States, do ordain 
and establish this Constitution for the United States of 
America.” But the Articles of Confederation do not pur¬ 
port to come from the people. They were the work of the 
States. The instrument is styled “ Articles of Confederation 
and Perpetual Union between the States of New Hampshire, 
Massachusetts Bay,” etc. It was drawn up and adopted by 
Congress, and sent to the States for ratification. 

Provisions of the Articles —The Articles provided for 
one House of Congress, to be composed of delegates appoint¬ 
ed annually by the several States, as each should direct, no 
State to be represented by more than seven or less than two, 
and no person being capable of serving as a delegate more 
than three years in six. Each State was to pay its own del- 


THE ARTICLES OF CONFEDERATION 


37 


egates, and could recall them at pleasure. The voting was 
to be by States. 

Congress was invested with power as to war and peace, 
treaties and alliances. Congress could decide, on appeal, dis¬ 
putes between States, could regulate the alloy and value of 
money, had charge of all postal matters, etc., etc. ; but no 
important action could be taken without a vote of nine 
States—two thirds of the whole. 

No executive department was provided, and no judiciary. 
Taxes were to be apportioned among the States, but Congress 
had no authority to levy them. Commerce was in the control 
of the States. Each State could lay duties and imposts. Con¬ 
gress had no power to enforce its own measures. 

Defects as to Taxation. —“ In the very modes of its opera¬ 
tion there was a monstrous defect, which distorted the whole 
system from the true proportions and character of a govern¬ 
ment. It gave to the Confederation the power of contracting 
debts, and at the same time withheld the power of paying 
them. It created a corporate body, formed by the Union and 
known as the United States, and gave to it the faculty of bor¬ 
rowing money and incurring other obligations. It provided 
the mode in which its treasury should be supplied for the re¬ 
imbursement of the public credit. But over the sources of 
that supply, it gave the government contracting the debt no 
power whatever. Thirteen independent legislatures granted 
or withheld the means which were to enable the general gov¬ 
ernment to pay the debts which the general constitution had 
enabled it to contract, according to their own convenience or 
their own views and feelings as to the purposes for which 
those debts had been incurred /’ 1 

Other Defects. —“ By this political compact, the United 
States in Congress have exclusive power for the following 
purposes, without being able to execute one of them. They 
may make and conclude treaties, but can only recommend 

1 Curtis’s History of the Constitution, L, page 181. 


38 


CIVIL GOVERNMENT 


the observance of them. They may appoint ambassadors, but 
can not defray even the expenses of their tables. They may 
borrow money in their own name on the faith of the Union, 
but can not pay a dollar. They may coin money, but' can not 
purchase an ounce of bullion. They may make war, and de¬ 
termine what number of troops are necessary, but can not 
raise a single soldier. In short , they may declare everything 
lut do nothing .” 1 

As each State paid its own delegates in Congress, the 
smaller the number the less the expense. Oftentimes a State 
would have no representative. The treaty of peace, signed 
September 3d, 1783, could not be ratified till January 14th, 
for want of representatives, and then there were but twenty- 
three members present. In April of that year there were pres¬ 
ent twenty-five members from eleven States, nine being repre¬ 
sented by two each. Three members, therefore—one eighth 
of the whole—could negative any important measure. 

The treaty of peace was made by the United States with 
Great Britain, but Congress could not enforce its provisions. 
Various articles were constantly violated by the States, and 
Congrecs could not prevent it. Great Britain declared her 
readiness to carry the treaty into elfect when the United 
States would do the same. 

As the general government could not carry out its own 
treaties with foreign powers because of the refusal of the 
States, so it could not protect a State against insurrection or 
rebellion. The outbreak in Massachusetts in 1786, known as 
Shays’s Insurrection, which embraced a fifth of the inhabitants 
in several of the most populous counties, caused great alarm 
through the country. Armed men surrounded the court¬ 
houses, and finally the insurgents were embodied in arms 
against the government. The national government was pow¬ 
erless to aid the State; the Articles of Confederation gave 
Congress no authority in such a case. 

1 American Museum, 1786, page 270, quoted by Story. 


THE ARTICLES OF CONFEDERATION' 


39 


Language of Washington. —The weakness of this league of 
States was made abundantly manifest. It is not surprising 
that Washington should write as he did to a member of Con¬ 
gress : “ You talk, my good sir, of employing influence to 
appease the present tumults in Massachusetts. . . . Influ¬ 

ence is not government. Let us have a government by which 
our lives, liberties, and properties will be secured, or let us 
know the worst at once.” 1 The weakness of the Confedera¬ 
tion, especially in its relation to the revenue, had been early 
seen by Washington. He saw “ that to form a new constitu¬ 
tion, which would give consistency, stability, and dignity to 
the Union, was the great problem of the time .” 2 

Views of Hamilton. —So, too, Mr. Hamilton, without doubt 
the ablest statesman of his age, was convinced before the Ar¬ 
ticles of Confederation went into operation that they could 
never answer the purposes of government. As early as 1780, 
he sketched the outlines of a system of government for the 
United States, embodying almost every feature of our present 
Constitution . 3 

Action of Massachusetts. —In May, 1785, Governor Bow- 
doin of Massachusetts suggested the appointment of special 
delegates from the States to define the powers with which 
Congress ought to be invested. A resolution was accordingly 
passed by the legislature of Massachusetts, declaring the Ar¬ 
ticles of Confederation inadequate, and calling a convention 
of delegates from all the States . 4 But the matter was not 
brought before Congress by the members of that body from 
Massachusetts. 

The Annapolis Convention of 1786 .—In January, 1786, the 
legislature of Virginia appointed commissioners to meet with 
those from other States to consider the subject of trade, with 
reference to a uniform system of commercial regulations. 
The meeting was held in September, at Annapolis, Maryland. 


1 Curtis, I., page 2T4. 
9 Ibid, I , page 204. 


9 Ibid, page 202. 

4 Bancroft’s Hist. Const, 1., page 190. 


40 


CIVIL GOVERNMENT 


Only five States were represented ; viz., New York, New Jer¬ 
sey, Pennsylvania, Delaware, and Virginia ; but great results 
followed from the convention. The committee representing 
so few States did not enter upon the proper business of the 
convention, but prepared a report, drawn up by Mr. Hamil¬ 
ton, expressing their unanimous conviction that a general 
convention should be called to devise such provisions as might 
render “ the constitution of the federal government adequate 
to the exigencies of the Union.” 

Action of Congress.—Hamilton’s report, though addressed 
to the States represented, was also sent to Congress as well as 
to the other States. That body, on the 21st of February, 
1787, adopted the following resolution : 

“ Resolved, That, in the opinion of Congress, it is expedient 
that, on the second Monday in May next, a convention of 
delegates, who shall have been appointed by the several States, 
be held at Philadelphia, for the sole and express purpose of 
revising the Articles of Confederation, and reporting to Con¬ 
gress and the several legislatures such alterations and provi¬ 
sions therein as shall, when agreed to in Congress and con¬ 
firmed by the States, render the federal constitution adequate 
to the exigencies of government and the preservation of the 
Union.” 

In accordance with this recommendation, all the States but 
Rhode Island appointed delegates to meet at Philadelphia at 
the time specified, Monday, May 14th, 1787. The organization 
was not, however, effected, for want of a quorum, till the 25th, 
when George Washington was unanimously elected President. 

It is worth noticing that it was interstate commerce which brought 
about the Annapolis convention and the convention that framed the Con¬ 
stitution. This is the most important domestic subject committed to the 
control of the national government. Its importance has grown rather than 
decreased since the adoption of the Constitution. 

The Convention.—The Philadelphia Convention contained 
many very eminent men. George Washington, Alexander 


THE CONVENTION OF 1787 


41 


Hamilton, James Madison, Benjamin Franklin, Rufus King, 
Roger Sherman, James Wilson, Gouverneur Morris, and Ed¬ 
mund Randolph would have been distinguished in any as¬ 
sembly. There were fifty-five members in all, most of whom 
were illustrious for their character and public services. Dr. 
Franklin had been a member of the Convention of 1754. 
Three had been present at the Congress of 1765. Seven had 
been members of the First Continental Congress. Eight 
were among the signers of the Declaration of Independence ^ 
Eighteen were at the same time delegates to the Continental 
Congress ; and of the whole number there were only twelve 
who had not sat at some time in that body. 1 

Work to be Done. —If the Convention was composed of ex¬ 
traordinary men, it had before it extraordinary work. They 
were to form a complete system of republican government, 
with no example for their guidance. This was their real 
work, though this was not distinctly present to the minds of 
all of them at first. Some were thinking only of amending 
the Articles of Confederation ; but Hamilton and Madison, 
and others, were prepared to enter at once upon the construc¬ 
tion of the organic law for a supreme general government, 
without regard, either in form or substance, to the existing 
Articles of Confederation. 2 

Virginia Plan. —Soon after the organization of the Con¬ 
vention, Mr. Randolph submitted a series of resolutions, 
embodying the views of the Virginia delegates as to the gov¬ 
ernment desirable to be established. Four delegates from 
that State, Washington, Madison, Randolph, and Mason, 
believing that the confederacy had entirely failed as a con¬ 
stitution of government, had agreed upon a plan for a national 
government, which had been drawn up by Madison, and 
altered and amended by their joint consultations. To Ran¬ 
dolph, at that time governor of the State, was assigned the 
office of bringing forward the outline, which was to be known 

* Hildreth’s Hist. U. S., IH., page 483. 9 Towle’s Analysis , page 31. 


42 


CIVIL GOVERNMENT 


as the Virginia plan. 1 Mr. Pinckney, of South Carolina, 
submitted on the same day a draft of a Constitution. All 
these were referred to the committee of the whole, and the 
discussion was commenced. The first resolution adopted in 
committee of the whole was the first of the series offered by 
Mr. Randolph, somewhat modified. It was as follows : “ Re¬ 
solved , That it is the opinion of this committee that a national 
government ought to be established, consisting of a supreme 
Legislative, Judiciary, and Executive.” 

This was a very important resolution. It was a recognition, in the 
beginning, of the fundamental principle of the separation of the three 
functions of government and the adoption of it as the basis of the new 
constitution. 

New Jersey Plan.—On the 13th of June, the committee 
reported a series of resolutions to the Convention. On the 
15th, Mr. Patterson, of New Jersey, offered resolutions ex¬ 
pressing the views of those who favored amending the Articles 
of Confederation and opposed the formation of a new consti¬ 
tution. The whole subject was then again referred to the 
committee of the whole, and debated till the 19th, when the 
committee reported adversely to Mr. Patterson’s plan, and sub¬ 
mitted the resolutions formerly reported. These resolutions 
were debated in the Convention from day to day, some great- 
questions, like that of suffrage in the Senate and House of Rep¬ 
resentatives, being occasionally referred to a special committee. 

Committee of Detail. —On the 23d of July it was voted to 
appoint a Committee of Detail, to whom should be referred 
the proceedings of the Convention, except what related to a 
supreme executive, for the purpose of reporting a constitu¬ 
tion embodying what had been agreed upon. This committee, 
appointed by ballot the next day, consisted of Messrs. Rut¬ 
ledge of South Carolina, Randolph of Virginia, Gorham of 
Massachusetts, Ellsworth of Connecticut, and Wilson of Penn¬ 
sylvania- The propositions of Mr. Patterson and of Mr. 

- * Bancroft, II., 6. 


THE CONSTITUTION FRAMED 


43 


Pinckney were also referred to this committee. On the 26th, 
after some instructions to the Committee of Detail, the Con¬ 
vention adjourned to the 6th of August. 

Committee on Style. —The Committee of Detail reported 
at the time appointed, and their draft was considered by the 
Convention till the 8th of September, when a committee of 
five was appointed to revise the style and arrange the articles. 
This Committee on Style consisted of Messrs. William Samuel 
Johnson of Connecticut, Alexander Hamilton of New York, 
Gouverneur Morris of Pennsylvania, James Madison of Vir¬ 
ginia, and Rufus King of Massachusetts. On the 12th, they 
reported the Constitution : also a letter to Congress to ac¬ 
company the Constitution. 1 

The Constitution Accepted by the Convention. —The dis¬ 
cussions were continued until Saturday, the 15th of Septem¬ 
ber, when the Constitution, as amended, was agreed to, all 
the States concurring. 2 It was then ordered to be engrossed, 
and on the Monday following it was signed by the members, 
after striking out 40,000 as the basis for representation, and 
inserting 30,000. The form of signature was this: “Done 
in Convention, by the unanimous consent of the States pres¬ 
ent, the seventeenth day of September, in the year of our 
Lord 1787, and of the Independence of the United States of 
America, the twelfth.” : 

Two of the three New York delegates having left the Con-; 
vention, that State was technically not present, though 
Alexander Hamilton's signature was attached. Mr. Gerry of 
Massachusetts and Messrs. Randolph and Mason of Virginia 
did not sign the Constitution, though it was signed by a ma¬ 
jority of the delegates from each of those States. 

* " The final draft of the instrument was written by Gouverneur Morris, who knew how 
to reject redundant and equivocal expressions, and to use language with clearness ana 
vigor; but the Convention itself had given so minute, long-continued, and oft-renewed 
attention to every phrase in every section, that there scarcely remained room for improve 
mem except in the distribution of its parts. n —Bancroft, Il„ 207. Curtis, I.,444. 

3 The votes had been by States, as in the Continental Congress. 


CHAPTER IY. 

The Constitution of the United States. 


We the people of the United States , in order to form a more 
perfect union , establish justice , insure domestic tranquillity , 
provide for the common defense , promote the general welfare, 
and secure the blessings of liberty to ourselves and our pos¬ 
terity , do ordain and establish this Constitution for the 
United States of America. 

The Enacting Clause not a Preamble. — The first sen¬ 
tence of the Constitution is often called a “ preamble.” But 
that term was not applied to it by those who framed the 
Constitution, and is not found in the original manuscript. 
It is not a preamble, either in form or substance, but is the 
enacting clause—an integral part of the Constitution itself. 
A preamble gives reasons why a resolution should be adopted 
or an enactment made, but it is no part of the resolution or 
enactment. The enacting clause, on the contrary, is man¬ 
datory. No other part of a statute is more important. Such 
is the introductory sentence of the Constitution. “ We the 
people of the United States,” for certain purposes, “do or¬ 
dain and establish this Constitution for the United States of 
America.” 

“ Here is no transient compact between parties : it is the 
institution of government by an act of the highest sover¬ 
eignty ; the decree of many who are yet one; their law of 
laws, inviolably supreme, and not to be changed except in 
the way which their forecast has provided.” 1 

1 Bancroft, 11.. 208. 

44 


THE CONSTITUTION 


45 


We have here (1) the authority—We, the people of the 
United States ; (2) the ends for which the Constitution is 
made, in six particulars; (3) the explicit ordaining of this 
Constitution, including this introductory clause; (4) the 
nation for whom it is made—the United States of America. 

The People Ordain the Constitution. —The Constitution 
was ordained by the people of the United States as a nation. 
The language presupposes the unity, the nationality, and the 
sovereignty of the people. The nation began to exist on the 
4th of July, 1776. The people then cast off their allegiance 
to Great Britain and became a separate nation, possessing the 
rightful sovereignty of the country. They became united in 
a national corporate capacity, as one people, and took for their 
national designation the name, the “ United States of Amer¬ 
ica. ” From that day to the present they have been known to 
the world by this name. Wherever in the Constitution these 
words occur, or the briefer form, the “ United States,” they 
signify the nation as a whole ; wherever the word “States” 
occurs it signifies the States considered separately, or as dis¬ 
tinguished from the nation. 

The purposes for which the Constitution was formed are 
admirably stated : “To form a more perfect union, establish 
justice, insure domestic tranquillity, provide for the common 
defense, promote the general welfare, and secure the blessings 
of liberty to ourselves and our posterity.” 

An Adequate Government Provided.—The Congress of the 
Confederation called the Constitutional Convention for the 
purpose of forming “a firm national government . . . 

adequate to the exigencies of government and the preserva¬ 
tion of the Union.” 1 The Union under the Confederatior 
was imperfect and unsatisfactory, and the framers of the 
Constitution determined to submit to the people an instru¬ 
ment which should be more efficient than the Articles of Con¬ 
federation. It was a union of the people of all parts of the 

1 Jour. Cont. Cong., XII., page 14 


46 


THE CONSTITUTION 


country, as constituting one nation, which they wished to 
secure, instead of a mere league of States. Under the Arti¬ 
cles of Confederation there was no distinct judicial depart¬ 
ment, as there was no executive, while the new Constitution 
provided for both. The domestic tranquillity had been 
greatly interfered with because of the power given to the 
individual States ; the central government having little more 
than the power to recommend. The national government 
would insure this domestic tranquillity. The words “ com¬ 
mon defense ” and “ general welfare ” were introduced near 
the close of the Convention, but they met with no opposition. 
No language could be more comprehensive than this, “ to pro¬ 
mote the general welfare.” 

For these various purposes the people of the United States 
ordain this Constitution for themselves. It is the organic, 
fundamental law for the whole people of the country whose 
corporate name is the United States of America. The nation, 
as such, establishes this Constitution, making it sufficient for 
all the exigencies of government. As the organic law of the 
nation, it is everywhere supreme. Subordinate governments 
may continue and new ones be established, but always in con¬ 
formity with this. 

The Seven Articles.—The Constitution contains seven arti¬ 
cles, which are subdivided into sections. In the original 
there are no headings to the articles. Both articles and sec¬ 
tions are numbered. 

Article 1st relates to the legislative power. 

Article 2d, to the executive power. 

Article 3d, to the judicial power. 

Article 4th, to various subjects. 

Article 5th, to the mode of amending the Constitution. 

Article 6th, to the validity of debts contracted before the 
adoption of the Constitution, and to the supremacy of the 
Constitution. 

Article 7th, to the mode of its ratification. 


1. I. 1. 


THE HOUSE OF REPRESENTATIVES 


47 


Besides these seven articles, seventeen amendments have 
been made to the Constitution, which are as binding as the 
original articles. 

ARTICLE i. 

The Legislative Department. 

Sec. I .—All legislative powers herein granted shall he 
vested in a Congress of the United States , winch shall consist 
of a Senate and House of Representatives. 

Congress in Two Houses. —Under the Confederation, the 
whole governmental authority was vested in Congress. There 
was no executive department, and no judicial. The first res¬ 
olution adopted in the Constitutional Convention was that a 
national government ought to be formed, consisting of su¬ 
preme legislative, executive, and judicial departments. Most 
legislative bodies have two houses. This is true of all the 
existing State governments, and was true of all at the time 
the Constitution was framed, except Pennsylvania and Geor¬ 
gia, which had but one each. 1 The Continental Congress had 
but one house. While there is a general distribution of 
powers among the three great departments of the government, 
the exercise of these powers is not absolutely exclusive. We 
shall see that the President has a qualified veto on legislation, 
and that the Senate sometimes acts as a court, and sometimes 
transacts executive business. 

Sec. 2, Clause I .—The House of Representatives shall he 
composed of members chosen every second year by the people of 
the several States , and the electors in each State shall have the 
qualifications requisite for electors of the most numerous 
branch of the State legislature. 

Term of Representatives. —Under the Confederation, the 
members of Congress were chosen annually, and as the legis- 

1 The constitution of Georgia, adopted in 1789, provided for two houses; as did that of 
Pennsylvania, adopted in 1790. 


48 


THE CONSTITUTION 1 


1. H. 9. 


latnre of each State should direct. They could also he re¬ 
called. The Constitution makes the term of service of the 
representatives two years, and requires that the election shall 
be by “ the people." A parliament of Great Britain expires 
at the end of five years unless sooner dissolved. 

By Whom Chosen.—Those who vote for representatives to 
Congress must have the qualifications requisite to enable 
them to vote for members of the lower house of the State leg¬ 
islature, but it is not clear by whom these qualifications are 
to be prescribed. The common opinion has been that the 
State prescribes them. The Constitution says simply that 
the qualifications must be the same ; so that whoever can vote 
for the State representative can vote for the national one also, 
and vice versa. The Constitution does say that representa¬ 
tives to Congress shall be elected by the people, thus virtually 
saying that the members of the most numerous branch of the 
State legislature shall also be elected by the people. Under 
the Articles of Confederation, the delegates in all the States 
but two were elected by the legislature. 1 

Clause 2 .—No person shall he a representative who shall 
not have attained to the age of twenty-five years, and been seven 
years a citizen of the United States, and who shall not, when 
elected , he an inhabitant of that State in which he shall he 
chosen. 

The Qualifications of a Representative relate to age, citi¬ 
zenship, and inhabitancy ; he must be twenty-five years old, 
a citizen of the United States for seven years, and an inhab¬ 
itant of the State where he is elected. It has been decided 
that the States can not prescribe additional qualifications. 

According to the Articles of Confederation, no person 
could be a representative in Congress more than three years 
in six; and each State prescribed the qualifications of its 
own representatives. In the British Parliament the required 

1 Federalist, No. 40. 


1. 1L t 


THE HOUSE OF REPRESENTATIVES 


49 


age is twenty-one years; and the same age is required in the 
different States of our Union. The representative must 
have been a citizen of the United States for seven years. 
The United States is here spoken of as one country,—a na¬ 
tion. It would be nonsense to say a representative must 
have been seven years a citizen of the thirteen States. 

Residence of a Representative. —The representative must 
be an inhabitant of the State in which he is chosen, but not 
necessarily of the district. In Great Britain, members of 
Parliament often represent boroughs and cities other than 
those in which they live. Some cases have occurred in this 
country. 1 The Constitution does not require the represent¬ 
ative to be a voter. A State qualification for suffrage might 
exclude from the polls one who possessed the requisites for 
a representative. If a State should come into the Union 
through conquest or purchase, the inhabitants becoming cit¬ 
izens thereby, the seven years' citizenship would not be in¬ 
sisted on. This is a form of naturalization. 

Clause 3 .—Representatives and direct taxes shall he ap¬ 
portioned among the several States which may be included 
within this Union, according to their respective numbers , which 
shall be determined by adding to the whole number of free 
persons, including those bound to service for a term of years, 
and excluding Indians not taxed, three fifths of all other per¬ 
sons. The actual enumeration shall be made within three 
years after the first meeting of the Congress of the United- 
States, and within every subsequent term of ten years, in 
such manner as they shall by law direct. The number of 
representatives shall not exceed one for every thirty thousand, 
but each State shall have at least one representative; and 

1 H 011 . O. B. Potter, a member of the 48th Congress from the c'ty of New York, rep¬ 
resented a district in which he did not reside. The same was true of Hon. S. S. Cox. 
In England, the members of the House of Commons were formerly required to reside in 
the districts for which they were chosen. But this was for a long time disregarded in 
practice, and repealed by statute in the time of George EH.—Story, S 619- 


50 


THE CONSTITUTION 


1. II. 3. 


until such enumeration shall he made, the State of New 
Hampshire shall be entitled to choose three, Massachusetts 
eighty Rhode Island and Providence Plantations one, Con¬ 
necticut five, New York six, New Jersey four, Pennsylva?iia 
eight, Delaware one, Maryland six, Virginia ten, North 
Carolina five, South Carolina five, and Georgia three. 

Voting in the Continental Congress. —When the Conti¬ 
nental Congress commenced its session, September 5th, 1774, 
the following resolution was adopted : 

“ Resolved, That in determining questions in this Congress, 
each colony or province shall have one vote : the Congress 
not being possessed of, or at present able to procure, proper 
materials for ascertaining the importance of each colony.” 

“ As if foreseeing the time when population would become 
of necessity the basis of congressional power, they inserted, in 
the resolve determining that each colony should have one 
vote, a caution that would prevent its being drawn into prec¬ 
edent.” 1 

Discussion in the Convention —The Articles of Confed¬ 
eration followed the same rule, and thus this method of vot¬ 
ing prevailed till the Constitution went into operation in 
1789. When the Convention decided to form two legislative 
bodies, the question of voting came up. Some were in favor 
of an equal representation by States in each branch, while 
others favored a popular basis, and a proportionate repre¬ 
sentation in each House. In general, the larger States wished 
the representation to be in proportion to the importance of 
the State, while the smaller States favored an equality, as in 
the Continental Congress. 

Decision as to Representatives. —It was first decided that 
in the House of Representatives suffrage should not be like 
that under the Confederation, but according to some equita¬ 
ble ratio of representation. The question then arose as to the 

1 Curtis, I., page 17. 


1. II. 3. 


THE HOUSE OF REPRESENTATIVES 


51 


basis of that ratio. Should the different States send repre¬ 
sentatives in proportion to their population or their wealth ? 
And if according to population, who were the people ? Should 
the number of representatives be according to the number of 
voters , or as the white population, or as the free population, 
or as the whole ? It was decided that the representation from 
the States should be “according to their respective num¬ 
bers ” ; that is, as the whole population, but that only three 
fifths of the slaves should be counted. 

The Three Fifths Rule. —According to the Articles of Con¬ 
federation, the votes were by States—each State, whether 
large or small, having one vote. But the quotas for the sup¬ 
port of the general government were as the values of real es¬ 
tate in the several States. In 1783, the Continental Congress 
recommended to the States to amend the Articles, so that each 
State should pay “ in proportion to the whole number of free 
inhabitants, and three fifths of the number of all other inhab¬ 
itants of every sex and condition, except Indians not paying 
taxes in any State.” 1 The Convention followed, both as to 
representation and direct taxes, this proposed amendment, 
though it was never ratified by the States; and this was the 
origin of the three fifths rule. 

The adoption of this rule was favorable to the slave States 
as it increased the number of their representatives; it was 
unfavorable as it increased their proportion of direct taxes. 
The advantage was greater than the disadvantage, however, 
as they enjoyed the increased number of representatives con¬ 
tinually, while direct taxes have been levied but five times 
since the adoption of the Constitution. 

Slavery having been abolished in 1865 by an amendment to 
the Constitution, all the colored population must be counted 
in determining the number of representatives from a State. 
If this class of the population could not vote, the Southern 
States, by the original constitution, would have nearly twice 

» Jour. Cont. Cong., VHL, page 123. 


52 


THE CONSTITUTION 


1. II. 3. 


as many representatives, in proportion to the number of voters, 
as the Northern States. To remedy this inequality, the Four¬ 
teenth Amendment provides that if the right to vote is denied 
to any class of citizens, the basis of representation shall be 
reduced in proportion. 

Basis of Representation. —The basis of representation was 
reported at 40,000 by the committee, and so remained till 
the last day of the Convention, when it was changed to 30,000, 
General Washington himself advocating the change. This is 
said to have been the only occasion on which he entered into 
the discussions of the Convention. 

Question in the First Congress.— A question arose early in 
Washington’s administration as to the construction of this 
clause. Should the number of representatives be determined 
by dividing the whole population of the United States by the 
number taken as the basis of representation, or by dividing 
the population of the respective States by that number, and 
taking the sum of the quotients ? The former method would 
give the largest number of representatives, and was adopted 
by Congress in the bill first passed. But the bill was returned 
by President Washington as conflicting with the language of 
the Constitution. Congress yielded to the judgment of the 
President, and the method then adopted of dividing the pop¬ 
ulation of each State by the basis of representation continued 
till 1842. 

The bill of 1790, as passed, provided for 120 representatives, the basis 
of representation being 30,000. Dividing the population of each State by 
30,000 would have given only 112. A new bill was passed and approved* 
in 1792, making the number of representatives 105, according to a ratio 
of one member to 33,000 persons in each State. Dividing the whole popu¬ 
lation by 33,000 would have given 110. 

Plan of 1842 .—In 1842 the law provided for fractions of the 
basis. The act of Congress of that year gave one representa¬ 
tive for every 70,680 persons and for a fraction greater than 
one half of that number. 


i. n. a. 


THE HOUSE OF REPRESENTATIVES 


53 


Plan of 1850. —After the census of 1850 another change 
was made. Hitherto the basis, or ratio, of representation had 
been first determined, and from that the number of rep¬ 
resentatives. In 1850 the method was reversed. The num¬ 
ber of representatives was first agreed upon ; then the whole 
population was divided by that number, and the quotient was 
the rp.tio or basis. To find the number of representatives to 
which each State was entitled, the population of each State 
was divided by this ratio. Since this division was rarely if 
ever even, the aggregate of the remainders was several times 
the ratio, and the aggregate of the quotients was less than 
the number of representatives first agreed upon. To make 
up the whole number, an additional representative was allotted 
to each of the States having the largest remainders. By the 
provisions of the law of 1850 the apportionments which went 
into effect in 1853 and 1863 were made by the Secretary of 
the Interior. In 1872, 1882, 1891, and 1901, Congress itself 
made the apportionment. 

Plan of 1911 . — Re verting to the plan of 1842, Congress made 
the apportionment of 1911 by giving one representative for 
every 211,877 persons, or fraction thereof greater than half. 

The first enumeration of the people was made in 1790, the second in 
1800, and so on. After the census returns have been made, Congress 
provides by law for the representation, to take effect March 4th of the 
third year after the decennial year. 


The Number of Representatives for the different decades, and 
the number of inhabitants for a representative, are: 


Period. 

Number of 

Ratio of 

Period. 

Number of 

Ratio of 

Members. 

Population. 

Members. 

Population. 

1789-1793 

65 


1853-1863 

234 

93,423 

1793-1803 

105 

33,000 

1803-1873 

241 

127,381 

1803-1813 

141 

33,000 

1873-1883 

292 

131,425 

1813-1823 

181 

35,000 

1883-1893 

325 

151,911 

1823-1833 

212 

40,000 

1893-1903 

356 

173,901 

1833-1843 

240 

47,700 

1903-1913 

380 

194,182 

1843-1853 

223 

70,680 

1913-1923 

435 

211,877 




54 


THE CONSTITUTION 


1. II. 4. 


The actual number of representatives has usually been 
greater than that here given, owing to the admission of new 
States. Thus, the Fifty-second Congress (1891-1893) had 
332 instead of 325 ; Washington, Montana, North Dakota, 
and South Dakota having been admitted in 1889, and Idaho 
and Wyoming in 1890. When Utah was admitted in 1896, 
her representative made the number 357 instead of 356. 

Representatives at Large.—After the number of representatives has 
been determined for a decade, each State is divided into districts corre¬ 
sponding to its number of members, the voters of each district voting for 
one member. In cases where the new apportionment gives a State more 
members than it previously had, Congress provides that the additional 
member or members shall be elected by the State at large until the legis¬ 
lature has redistricted the State. Thus the inconvenience and expense of 
a special session of the legislature are avoided. 

The Gerrymander.—While the number of congressmen to which each 
State is entitled for a decade can not be changed after having been once 
determined upon, the geographical arrangement of the districts repre¬ 
sented by them within a State is subject to change by the State legislature. 
The district boundaries are sometimes changed according to the political 
bias of the inhabitants. In this way a population belonging largely to one 
party may be thrown together in one or two districts in which they pre¬ 
dominate with large majorities, instead of being divided among several 
other districts in which these parts previously held the balance of partisan 
power. Thus the partisan make-up of a State’s “ delegation ” can be ma¬ 
terially changed and the partisan character of the House of Representa¬ 
tives affected. This practice is known as the gerrymander , from Governor 
Gerry of Massachusetts, where it was first employed, while he was gov¬ 
ernor, in redistricting the State to affect the make-up of the State senate. 
The abuse of this practice has, in some cases, led to such extreme politi¬ 
cal injustice that the courts have annulled the redistricting acts as being 
in violation of State constitutions. 

Hawaii and Alaska each elect one delegate, Porto Bico one 
commissioner, and the Philippines two commissioners, who 
have seats in the House, and may debate, but have no vote. 

Clause 4.— When vacancies happen in the representation 
from any State , the executive authority thereof shall issue 
writs of election to fill such vacancies. 


1. U. 5. 


THE HOUSE OF REPRESENTATIVES 


55 


Vacancies may be created by death, resignation, removal, 
or accepting incompatible offices. All these cases have oc¬ 
curred. The person thus elected to fill a vacancy serves only 
for the remainder of the term. 

Clause 5.— The House of Representatives shall choose their 
speaker and other officers , and shall have the sole power of im¬ 
peachment. 

Officers of the House. —The speaker is the presiding officer 
of the House. The presiding officer of the Continental 
Congress was styled president. Where a legislature is com¬ 
posed of two houses, the presiding officer of the upper house 
is usually called president, and of the lower house speaker. 
The British House of Commons chooses its speaker, but the 
approbation of the Crown is necessary. 

The other officers ” of the House of Representatives are a 
clerk, sergeant-at-arms, doorkeeper, postmaster, and chaplain. 
Unlike the speaker, these officers are not members of the 
House. There are also many minor employees. 

The office of clerk is one of great importance, and is usually 
filled by an ex-member of Congress. The clerk presides at 
the organization of the subsequent Congress. 

The Congress that convened December 3d, 1855, did not succeed in 
electing a speaker till the 2d of February, 1856, having balloted 133 times. 
Mr. N. P. Banks was the successful candidate. In the case of the Thirty- 
sixth Congress, in the winter of 1859-60, there was a delay of nine weeks. 
Mr. John Sherman was the principal Republican candidate, on one ballot 
lacking but three votes of election. He declined in favor of Mr. William 
Pennington, who was elected. A list of the speakers will be found 
in the Appendix. 

Impeachment. —The Constitution gives to the House of 
Representatives the sole power of impeachment, and to the 
Senate the sole power to try the party impeached. As a citi¬ 
zen can not be tried before an ordinary court until he has 
been indicted by a grand jury, so an officer of the government 


58 


THE CONSTITUTION 


1. III. 1. 


can not be tried by the Senate until articles of impeachment 
have been brought against him by the House of .Representatives. 

The method of proceeding, so far as the House is concerned, is this: 
A committee is appointed to inquire into the conduct of the officer sup¬ 
posed to have been guilty of acts requiring impeachment. If it reports 
in favor of impeachment, the question is acted on by the House. Should 
the House determine on impeachment, articles are prepared, embodying 
the charges, on each of which action is taken. A committee is then ap¬ 
pointed to prosecute the impeachment before the Senate. For the method 
of trial and a list of the persons impeached, see Art. I., Sec. 3, Clauses 6 
and 7, and the treatment on pages 63-65 of this book. 

Sec. 3, Clause i.— The Senate of the United States shall 
be composed of two senators from each State , [chosen by the legis¬ 
lature thereof for six years y] 1 and each senator shall have one 
vote. 

The Senate ; Discussion in the Convention. —In the Con¬ 
vention that framed the Constitution there was a great differ¬ 
ence of opinion as to the mode of electing senators, as to their 
term of service, and as to the rule of suffrage. Some were in 
favor of a nomination by the State legislatures, and an elec¬ 
tion by the United States House of Representatives; others 
would have the President appoint from those nominated by 
the State legislatures; others would have the senators chosen 
by the House of Representatives; and others still proposed 
an election by the people. As to the term of office, some ad¬ 
vocated a life tenure or during good behavior; some, a term of 
nine years; others, seven; others, six; and others, four. 

Question of Voting. —The question of voting was the most 
difficult. As in the Continental Congress the States were on 
an equality as to their votes, the smaller States wished the 
same rule to hold under the Constitution; while the larger 
States claimed that an equality of votes in either house would 
be unjust. The smaller States finally conceded that in the 

1 Superseded by the Seventeenth Amendment providing for the election of senators by 
the people. For the text of the amendment, see page xliv. 


L OL L 


THE SENATE 


57 


House of Representatives the number of members should be 
in proportion to population ; but they insisted that in the 
Senate the States should be equal. But the larger States 
insisted on proportional representation in the Senate as well 
as in the House, and the committee of the whole reported, 
“That the right of suffrage in the second branch of the 
national legislature ought to be according to the rule estab¬ 
lished for the first." This report was adopted by the Con¬ 
vention ; but the matter was subsequently referred to a com 
mittee of one from each State, which reported the rule as it 
now stands. The final vote was: affirmative—Connecticut, 
New Jersey, Delaware, Maryland, North Carolina—5 ; nega¬ 
tive—Pennsylvania, Virginia, South Carolina, Georgia—4 ; 
Massachusetts, divided. “ So that this greatest and most dif¬ 
ficult of all the important questions which the Convention 
was called upon to solve was carried by less than a majority 
of the States present, and by the concurrence of less than one 
third of the represented population." 1 

The first House of Representatives was to consist of 65 members; 
Connecticut, New Jersey, Delaware, Maryland, and North Carolina hav¬ 
ing 21, or less than one third of the whole number. (See Constitution , 
Art. I., Sec. 2, Clause 3.) 

Mr. Madison strongly opposed the principle finally adopted. 
In his letter to Mr. Sparks he said the Gordian knot of the 
Convention was the question between the larger and the 
smaller States as to the rule of voting in the Senate ; the lat 
ter claiming, the former opposing, the rule of equality. 2 

Number of Senators. —By the Articles of Confederation 
each State might send not more than seven delegates to Con¬ 
gress, nor less than two. They were elected annually, but no 
one could sit more than three years in six. The States could 
recall their delegates at any time. Under the Constitution, 
we see that each State can send two senators, and as many 


> Towle, page 69. 


•Elliot, 1., page 608. 


58 


THE CONSTITUTION 


1. IH. 1. 


representatives as her population entitles her to; that there 
is nothing to prevent a senator or representative from being 
returned as often as his constituents desire; and that, when a 
senator or representative has been elected, the State has no 
power to recall him. 1 

Though all the States have the same number of senators, 
and each senator has one vote, that is not the same as voting 
by States, as was done in the Continental Congress. If both 
the senators of a State are present, and vote on opposite sides 
of a question, their votes neutralize each other, as under the 
Confederation. But if only one of two delegates from a State 
was present in the Continental Congress, his vote could not 
be counted; under the present Constitution, the vote of a 
senator is counted whether his colleague is present or not. 

Method of Electing Senators by State Legislatures. —Until 
the year 1913, Senators were elected by the State legislatures. 
The Constitution did not prescribe the precise method in which 
the legislature of a State should choose the senators, whether 
by the houses voting in joint assembly, or by voting separately. 
It was not properly an act of legislation, and the governor of 
a State had no participation in it, as, in most States, he has in 
ordinary legislation. 2 

In 1866, Congress passed an “ Act to regulate the times 
and manner of holding elections for senators in Congress.” 
It provided that the legislature of each State which was 
chosen next preceding the expiration of the time for which 
any senator was elected, should, on the second Tuesday after 
the meeting and organization thereof, proceed to elect a sen¬ 
ator as follows: 

Each house named (proposed by vote) a person for senator 

1 John Sherman was six times elected senator from Ohio, and actually served as sen¬ 
ator thirty-two years. Thomas H. Benton was thirty years a senator from Missouri. 
Many have been elected four or five times. 

2 New York had no senators for the first few months of the First Congress, because 
of disagreement between the two branches of the legislature. The smaller upper house 
favored voting separately; the larger lower house wanted a joint vote of the two houses. 


1. III. 2. 


THE SENATE 


59 


by a viva voce vote; the next day at noon the two bouses met 
in joint assembly, and if the same person received a majority 
of all tbe votes in each house, he was declared duly elected. 

If no person received such majorities, the joint assembly 
chose by a viva voce vote; and whoever received a majority of 
all the votes cast, a majority of both houses being present, was 
declared elected. 

If no person was elected the first day, the joint assembly 
convened each day at twelve o’clock and took at least one vote 
each day during the session, or until a senator was elected. 

If a vacancy existed when the legislature convened, the same 
steps were taken; and if a vacancy occurred during the session 
of the legislature, they proceeded to elect on the second Tues¬ 
day after they had notice of the vacancy. 

The Seventeenth Amendment. —The original method of 
electing senators caused many deadlocks in State legislatures 
and gave rise to much criticism. Finally the Seventeenth 
Amendment to the Constitution was adopted, placing the elec¬ 
tion of senators in the hands of the people. This amend¬ 
ment is discussed more fully on page 284. 

Clause 2.— Immediately after they shall be assembled in 
consequence of the first election , they shall be divided as equally 
as may be into three classes. The seats of the senators of the 
first class shall be vacated at the expiration of the second year , 
of the second class at the expiration of the fourth year , and of 
the third class at the expiration of the sixth year , so that one 
third may be chosen every second year ; \and if vacancies hap¬ 
pen by resignation , or otherwise , during the recess of the legis¬ 
lature of any State , the executive thereof may make temporary 
appointments until the next meeting of the legislature , which 
shall then fill such vacancies-] 1 

Senators Divided into Three Classes. —When the Senate 
convened March 4th, 1789, there were twenty senators present: 

1 Superseded by the Seventeenth Amendment, p. xliv. 


60 


THE CONSTITUTION 


1. III. 2 


Khode Island and North Carolina had not yet ratified the 
Constitution, and New York had not elected her senators. 
These twenty were arranged in three groups, with seven in 
the first, seven in the second, and six in the third. When the 
two senators from New York took their seats, July 26th, one 
was placed in the third class, and the other in the first, mak¬ 
ing eight of the first class, and seven of each of the others. 
The North Carolina senators, who came in November, fell into 
the second and third classes. The classes had now eight in 
each of them. In like manner, the senators of each new 
State have been placed in different classes, that their terms 
might not expire at the same time ; and the classes have been 
kept substantially equal, so that the terms of one third of the 
senators may expire every second year. 

Working of the Plan.—If a senator from a new State is 
placed in the third class, we are not to infer that his term 
will be six years. As the Constitution went into operation 
in 1789, the terms of the senators of the first class would ex¬ 
pire in 1791. The terms of their successors would expire in 
1797, 1803, 1809, and so on. The terms of the senators of 
the second class would expire in 1793, 1799, 1805, etc. ; and 
those of the third class in 1795, 1801, 1807, etc. The sena¬ 
tors from Ohio took their seats in 1803. One of them was 
placed in the first class and the other in the third. As the 
terms of senators of the first class expire in 1809, 1815, etc., 
the one in the first class would remain in office six years, 
while the one in the third class would remain but four, the 
terms of the third class expiring in 1807. Thus one Ohio 
seat in the Senate becomes vacant in 1915, 1921, and so on; 
the other, in 1917, 1923, and so on. 

Congresses Designated Numerically.—The Senate is a per¬ 
manent body, while the House of Kepresentatives is changed 
every two years. As the Constitution went into operation on 
the 4th of March, 1789, the term of office of every senator, 
as well as representative, ends on the 4th of March of a year 


1. III. 8. 


THE SENATE 


61 


denoted by an odd number. A Congress is measured by the 
term of office of the representatives, the first extending two 
years from the 4th of March, 1789. It is customary to des¬ 
ignate each Congress by an ordinal number. Thus, the 
Sixty-third Congress began March 4th, 1913, and ended 
March 4th, 1915. 

Before 1913, when a vacancy occurred, it was temporarily 
filled by executive appointment, and the senator thus appointed 
held his office till the legislature chose his successor, or ad¬ 
journed without making a choice. In some cases, when a 
deadlock prevented the legislature from electing a senator, the 
governor of the State attempted to fill by appointment the 
vacancy thus resulting, but the Senate decided not to recognize 
such appointees as senators or to admit them to membership. 

The Seventeenth Amendment declares that when a vacancy 
occurs in the Senate the governor of the state in which the 
vacancy occurs shall issue a writ of election for filling the 
vacancy. But the governor may, if authorized by the State 
legislature, appoint a successor to serve as senator until the 
office is filled by vote of the people at the next regular 
election. 

Clause 3 . — No person shall be a senator who shall not have 
attained to the age of thirty years , and been nine years a citi¬ 
zen of the United States , and who shall not , when elected , be 
an inhabitant of that State for which he shall be chosen. 

Qualifications of a Senator. —A representative must be 
twenty-five years of age; a senator, thirty. A representative 
must have been a citizen seven years; a senator, nine. The 
condition as to residence is the same for both. 

The age required in a Roman senator was thirty years. In 
Rome, majority was not attained till the age of twenty-five j 
the same is true in France and Holland. 1 


* Story, $ 728. 


62 


THE CONSTITUTION 


1. III. 4. 


There have occurred cases of election to the Senate without 
the requisite number of years of citizenship. Albert Galla¬ 
tin was elected from Pennsylvania in 1793; his seat was vacated 
by resolution of the Senate. James Shields was elected 
from Illinois in January, 1849; his seat was vacated, also, 
but he was reelected in October of the same year, his disabil¬ 
ity having been by that time removed. Henry Clay became 
a senator a few months before he was thirty; in this case the 
irregularity was overlooked. 

There is nothing to prevent a senator’s changing his resi¬ 
dence to another State after his election. He is not the rep¬ 
resentative of a particular State. 

Clause 4. —The Vice President of the United States shall 
be-president of the Senate , but shall have no vote , unless they 
be equally divided . 

The Vice President. —The Convention that formed the 
Constitution did not at first contemplate such an officer as 
Vice President. The senators were to elect their own presid¬ 
ing officer, who was to become President of the United States 
in case of the death, resignation, or removal of that officer. 
But as the mode of electing a President which was adopted by 
the Convention required two persons to be voted for at the 
same time, the one receiving the highest number of votes to 
be President, this provision for a Vice President was made 
near the close of the session. The lieutenant governor of a 
State is usually the presiding officer of the State senate. 

The casting vote of the Vice President can be of efficacy 
only when in favor of a measure. If he had no vote, no meas¬ 
ure could be carried upon which the Senate was equally 
divided. As it is, he has helped to carry some measures of 
great importance. By a rule of the Senate, adopted in 1828, 
“every question of order shall be decided by the president 
without debate, subject to appeal to the Senate.” 


1. III. 5. 


THE SENATE 


63 


In the British House of Lords, the Lord Chancellor, or some 
other person appointed by the Crown, presides. If no person 
is appointed, the Lords elect. 

Clause 5* —The Senate shall choose their other officers , and 
also a president pro tempore, in the absence of the Vice Pres¬ 
ident, or when he shall exercise the office of President of the 
United States. 

The “ other officers ” of the Senate are a secretary, sergeant- 
at-arms, two doorkeepers, and a chaplain. These are not 
senators. There are also many minor employees. 

The president pro tempore seems not to be appointed per¬ 
manently, except on the death of the Vice President, or on 
his becoming President. 

For a list of those who have been presidents pro tempore 
when there was no Vice President, see the Appendix. 

When the Vice President becomes President of the United 
States, the president pro tempore receives the salary of the 
Vice President. The president pro tempore is not restricted 
to a casting vote; he has his vote as senator. 

Clause 6. — The Senate shall have the sole power to try all 
impeachments. When sitting for that purpose , they shall be 
on oath or affirmation. When the President of the United 
States is tried , the Chief Justice shall preside : and no per¬ 
son shall be convicted without the concurrence of two thirds of 
the members present. 

The Senate Tries Impeachments. —The Senate, whose 
principal functions are legislative, is here clothed with judi¬ 
cial powers. All those who are impeached by the House of 
Bepresentatives must be tried by the Senate. 

In Great Britain, the power of impeachment is with the 
Commons, and the power of trial with the Lords; but the 
Lords do not take a special oath, and a majority is sufficient 


64 


THE CONSTITUTION 


1. III. T. 


to convict. Our method is thus more favorable to the party 
under trial than is the British. 

When the President is tried the Chief Justice presides, be¬ 
cause the Vice President is interested in the result of the 
trial. If the President is convicted, the Vice President suc¬ 
ceeds to the office. When Andrew Johnson was tried in 1868, 
Chief Justice Chase presided. If Mr. Johnson had been con¬ 
victed, the president pro tempore would, by the law of March 
1st, 1792, have succeeded to the presidency; on that account 
it was claimed that he ought not to participate in the trial. 
His own view of his right and his duty differed from this, 
however, and he voted on the case as other senators. 

There have been nine cases of impeachment: William Blount, senator 
from Tennessee, in 1798; John Pickering, District Judge of New Hamp¬ 
shire, in 1803; Samuel Chase, Associate Justice of the Supreme Court, 
in 1804; James H. Peck, District Judge of Missouri, in 1830; West H. 
Humphries, District Judge of Tennessee, in 1862; Andrew Johnson, Pres¬ 
ident, in 1868; W. W. Belknap, Secretary of War, in 1876; Charles 
Swayne, District Judge of Northern Florida, in 1906; and Robert W. 
Archbald, Associate Judge, United States Commerce Court, in 1913. 
Only Judges Pickering, Humphries, and Archbald were convicted. For 
the trials, see pages 199-201. 

Clause 7 .— Judgment in cases of impeachment shall not 
extend further than to removal from office, and disqualification 
to hold and enjoy any office of honor, trust, or profit under 
the United States: but the party convicted shall neverthe¬ 
less be liable and subject to indictment, trial, judgment, and 
punishment, according to law. 

Punishment in Cases of Impeachment. —In Great Britain 
there is no such limitation in the punishment. The person 
convicted may be fined, or imprisoned, or banished, or put to 
death. But in our country the punishment is political— re¬ 
moval from office and disqualification for it. This judgment, 
however, does not prevent a subsequent trial by jury for the 
criminal violation of law. 


1. IV. 1. 


CONGRESSIONAL ELECTIONS 


65 


In a subsequent article it is provided that a civil officer of 
the United States, impeached and convicted, “ shall be re¬ 
moved from office.” This punishment is imperative ; he may 
be punished further by disqualification to hold office. The 
punishment inflicted on such an officer, who has been con¬ 
victed by the Senate, can not be less than removal from office ; 
it can not be greater than removal and disqualification com¬ 
bined. Judge Pickering was removed from office only ; Judge 
Humphries and Judge Archbald were removed from office, and 
declared disqualified to hold any office of honor, trust, or profit 
under the United States. 

Sec. 4 , Clause I .—The times, places, and manner of hold¬ 
ing elections for senators and representatives shall be pre¬ 
scribed in each State by the legislature thereof; but the Con¬ 
gress may at any time by law make or alter such regulations, 
except as to the places of choosing senators. 

The Control of Elections by Congress.—By act of Con¬ 
gress, passed June 25th, 1842, it was provided that represent¬ 
atives should be elected by districts of contiguous territory 
equal to the number of representatives. This is believed to 
have been the first instance of any regulation by Congress 
touching elections of senators or representatives. In 1866 an 
act was passed to regulate the mode of choosing senators, as 
already stated (pages 58, 59). In 1871 Congress enacted that 
all votes for representatives in Congress should be by written 
or printed ballots, any law of any State to the contrary not¬ 
withstanding. In 1872 provision was made that representa¬ 
tives should be elected on the same day throughout the United 
States, viz., on the Tuesday after the first Monday in Novem¬ 
ber ; to go into effect in 1876. By act of 1875, States whose 
constitutions prescribed a different day were exempted from 
its effect. In 1899 Congress modified the law as to votes for 
representatives in Congress, providing that these votes should 
A. C.—5 


6b 


THE CONSTITUTION 


1. IV. 3. 


be by written or printed ballot or voting machine the use of 
which has been authorized by State law. 

Opposition to this Clause.—This clause, giving to Congress 
the ultimate control as to elections for senators and represent¬ 
atives, met with little opposition in the Convention, but it 
was opposed in some of the State conventions. “Its pro¬ 
priety ,'” says Mr. Hamilton, “ rests upon the evidence of this 
plain proposition, that every government ought to contain in 
itself the means of its own preservation.” 1 But the oppo¬ 
nents of the Constitution maintained that this clause gave to 
Congress the whole ultimate control of elections for mem¬ 
bers of Congress, including the qualifications of electors and 
elected, except as stated elsewhere in the Constitution. 

Patrick Henry said: 44 The control given to Congress over the time, 
place, and manner of holding elections will destroy the end of suffrage. 

. . . Congress may tell you they have a right to make the vote of 

one gentleman go as far as the votes of a hundred poor men. . . . 

They may regulate the number of votes by the quantity of property, with¬ 
out involving any repugnancy to the Constitution.” 2 

The practice has been for the States to prescribe the qualifications of 
voters in their constitutions. Mr. Farrar claims, on the other hand, that 
it was well understood by both parties at the time the Constitution was 
framed, 44 that the whole law of elections, subject to the provisions of the 
Constitution, was under the control of Congress.” 3 

The Constitution of the Confederate States says, 44 No person of foreign 
birth, not a citizen of the Confederate States, shall be allowed to vote for 
any officer, State or Federal.” Thus their federal constitution prescribed 
qualifications for voters at State elections. 

The restricting clause, as to the place of choosing senators, 
was inserted that Congress should not have the right to pre¬ 
scribe to the State legislatures their places of meeting. 

Clause 2.— The Congress shall assemble at least once in 
every year, and such meeting shdll be on the first Monday in 
December , unless they shall by law appoint a different day. 

1 Federalist, No. 59. 2 Elliot, m., pages 60,176 

8 Manual of the Constitution, page 268. 


i. rv. 2 . 


CONGRESSIONAL SESSIONS 


67 


Sessions of Congress.—Annual sessions are thus made im¬ 
perative. As the term of each Congress is two years, there 
are two regular sessions during each term. There have been 
repeated instances of three sessions by the same Congress. 1 
For the first thirty-two years the regular sessions began on the 
first Monday in December about half the time ; since then all 
the regular sessions have begun on that day. 

The Two Sessions Unequal.—The first regular session of 
each Congress usually continues from December till the follow¬ 
ing spring or summer. The Thirty-first Congress was in session 
till the 30th of September—three hundred and two days. The 
second regular session closes at noon on the 4th of March, being 
thus about three months long. Until 1853 the term ended at 
midnight of the 3d of March. Since that time Congress has 
continued in session till noon of the 4th. The journals of the 
two houses still bear the date of the 3d, and the laws signed 
between midnight and noon of the 4th are dated the 3d of 
March. 

By act of January 22d, 1867 , each new Congress was required to meet 
“ at twelve o’clock, meridian, on the 4 th day of March, the day on which 
the term begins for which Congress is elected.” Under this act each Con¬ 
gress had three sessions: the first commencing on the 4 th of March, the 
second on the first Monday of December of the same year, and the third 
on the first Monday of December of the following year. The first session 
was very short, and the second and third were regarded as the regular ses¬ 
sions. This act was in force during the Fortieth, Forty-first, and Forty- 
second Congresses, and was then repealed. 

Under the Articles of Confederation, the congressional year 
began the first Monday in November, the members being- 
elected for one year. Congress might adjourn to any time 
within the year, but not for a longer period than six months. 


1 There were three sessions in the First Congress, the Fifth, Eleventh, Thirteenth, 
Twenty-fifth, Twenty-seventh, Thirty-fourth, Thirty-seventh, Fortieth, Forty-first, Forty- 
second, Forty-fifth, Forty-sixth, Fifty-third, Fifty-fifth, Fifty-eighth, Sixty-first, Sixty- 
second, snd Sixty-third. 


68 


THE CONSTITUTION 


l. V. 1. 


Sec. 5, Clause I.— Each House shall be the judge of the 
elections , returns , and qualifications of its own members , and 
a majority of each shall constitute a quorum to do business; 
but a smaller number may adjourn from day to day , and may 
be authorized to compel the attendance of absent members , in 
such manner, and under such penalties as each House may 
provide. 

Contested Seats.—The certificate of election furnished by 
the State authorities is prima facie evidence that the person 
holding it is entitled to a seat, but it is not conclusive. Each 
house has a Committee on Elections, to which are referred 
all doubtful cases, and on their report the house decides : 
from this decision there is no appeal. Most legislative bodies 
exercise the same power as to the admission of members. 1 

Quorum.—A majority seems to be a suitable quorum. In 
the British House of Commons, composed of about six hun¬ 
dred and seventy members, forty is a quorum. Under the 
Articles of Confederation, no question, except that of ad¬ 
journment, could be decided by Congress unless by a majority 
of all the States ; and for the most important questions nine 
States were required, i.e., two thirds. 

There was no power to compel attendance, and business was frequently 
delayed through the absence of members. In one instance, Congress 

1 Until 1867, the British House of Commons decided all questions touching the elec¬ 
tions of its members, but since that date election petitions (or contests) are tried by the 
common-law judges.— Johnson's Cyclopaedia , Art. Parliament. 

It is very doubtful whether the British practice would be the best for the United 
States. The power of the judiciary in the United States is now very g eat and it is vested 
with the power of deciding the extent of its own authority. It is essential that respect 
for the courts be maintained, and one of the best means of preserving this is to keep 
from their consideration, so far as possible, questions of such a political character as to 
arouse suspicion in passionate minds that partisan bias has affected the minds of the 
judges in reaching a decision. No more dangerous subject could be found than election 
contests, with their charges and counter-charges of fraud and corruption. The English 
House of Commons at a very early date in the fourteenth century claimed the right to de¬ 
cide matters pertaining to the election of its own members. It has always exercised 
such right except as it has relinquished it by statute to the courts of law. 


1. V. 2. 


RULES OF PROCEEDINGS 


69 


assembled on the 3d of November, but there was no quorum till the 14th 
of January. Rhode Island once recalled her delegates, and so prevented 
the transaction of important business. 

In the State of New York, no bill can be passed without the 
votes of a majority of all the members elected to each house. 
The constitution of Illinois has a similar provision. 

By a rule of the House of Representatives, fifteen members, 
including the speaker, can compel attendance. 1 

Clause 2 .—Each House may determine the rules of its 
proceedings, punish its members for disorderly behavior, and, 
with the concurrence of two thirds, expel a member. 

Parliamentary Rules —The “rules of proceedings” gen¬ 
erally recognized as governing deliberative assemblies con¬ 
stitute what is called Parliamentary Law. When the First 
Congress convened, in 1789, the House of Representatives 
established rules, some of which are still in force. At the 
beginning of the first session of each Congress it is usual to 
adopt the rules of the previous Congress until otherwise 
ordered, and a committee is appointed to report new rules 
during the session. 

Counting a Quorum. —During the Fifty-first Congress a 
great controversy arose between the Republican and Demo¬ 
cratic members of Congress over a rule giving the speaker 
(Mr. Reed) the right to “count a quorum,” as it was called. 
It had, theretofore, been customary to regard a member refrain¬ 
ing from voting upon a question as not forming a part of the 
majority of the House which the Constitution declared to 
be the quorum necessary for the transaction of business. 
The practice of refusing to vote is called filibustering. 
Under the old rule, unless the prevailing party could muster, 
from its own adherents, a majority of the membership of 
the House, any party measure was liable to defeat. The 
effect of the old rule was to permit a man to debate and in 

1 Rules of the House of Representatives, Rule XV. 


70 


THE CONSTITUTION 


l. V. i. 


various ways to oppose legislation, and yet by his refusal to 
vote to render himself “ constitutionally absent.” As the 
Republican majority in the Fifty-first Congress was very 
small, this power of the minority would have been very 
effective. Mr. Reed, however, adopted the course of counting 
the non-voting members actually present as a part of the 
House, and thus making a quorum. The right to do this 
was questioned rigorously, but the Supreme Court sustained 
the laws thus passed, and the course has become established 
as a legal method of procedure. 

Expulsion of Members—The power to punish a member 
has been exercised by both houses. William Blount, senator 
from Tennessee, was expelled in 1797, and Jesse D. Bright, 
senator from Indiana, in 1863. There were other cases dur¬ 
ing the civil war. 

It seems to be settled that a member may be expelled for 
any misdemeanor which, though not punishable by any stat¬ 
ute, is inconsistent with the trust and duty of a member. 1 

Contempt.—The Constitution does not confer any express power to 
punish contempts , i.e. y offenses by persons not members of the house; 
but this power has been considered to belong to the legislative assemblies 
as such, and the Supreme Court has so decided. But the power to punish 
is held to extend only to imprisonment, and this only until the dissolution 
of the house by which the punishment is inflicted. 

Clause 3 .—Each House shall keep a journal of its pro¬ 
ceedings, and from, time to time publish the same, excepting 
such parts as may in their judgment require secrecy; and 
the yeas and nays of the members of either House on any 
question shall, at the desire of one fifth of those present, be 
entered on the journal. 

Open Sessions.—It is usual for both houses to have open 
sessions, except the Senate when in executive session, i.e., 

1 The power to punish, suspend, or expel its own members is possessed by every 
deliberative body. It has been claimed and exercised by the English Rouse of Com¬ 
mons throughout its history, beginning in the fourteenth century. 


1 . V. 4 . 


METHODS OF VOTING 


71 


acting upon nominations made by the President, or engaged 
in discussion of treaties. The Convention that framed the 
Constitution sat with closed doors, and so did the Senate 
from the beginning of the First Congress until the second 
session of the Third Congress. 

Methods of Voting.—There are different methods of voting 
in Congress. The usual method is viva voce , the presiding 
officer deciding by his ear. If he is doubtful as to the result, 
he makes a count, the members rising for that purpose. Or, 
if a member questions the correctness of his decision, a divi¬ 
sion of the house is called for, and tellers are appointed who 
count the voters. But in important questions the roll of the 
house is called by the clerk, and each member’s vote is re¬ 
corded in the journal. This is voting by “ yeas and nays.” 
It enables the people to know how their representatives vote, 
and a permanent record of the votes is kept. 

The Articles of Confederation required the yeas and nays to be taken 
when called for by a single member. The present provision, making the 
yeas and nays dependent on the call of one fifth the members present, is a 
decided improvement on the former one. A factious minority often avail 
themselves of this rule to delay proceedings, and prevent the passage of a 
bill. Thus, a member moves for adjournment, for example, and asks for 
the yeas and nays. If a fifth of those present concur in this request, the 
roll must be called, occupying much time. Oftentimes the member mov¬ 
ing to adjourn votes against his own motion. Such a motion is called a 
dilatory motion. 

Mr. Reed, speaker of the Fifty-first Congress, adopted the course of re¬ 
fusing to entertain dilatory motions or to recognize members who he had 
reason to believe were about to make dilatory motions. 

Clause 4 .—Neither House, during the session of Congress, 
shall, without the consent of the other, adjourn for more than 
three days, nor to any other place than that in which the two 
Houses shall le sitting. 

Under the Articles of Confederation, Congress could ad¬ 
journ to any time within the year, and to any place within 


72 


THE CONSTITUTION 


1. VI. 1. 


the United States, but no adjournment could be for a 
longer period than six months. The present provision was 
made necessary by the division of the Congress into two 
houses. It prevents either house from interrupting, by ad¬ 
journment, the progress of business. 

Sec. 6, Clause I .—The senators and representatives shall 
receive a compensation for their services , to be ascertained by 
la w , and paid out of the Treasury of the United States. They 
shall in all cases , except treason, felony , and breach of the peace, 
be privileged from arrest during their attendance at the session 
of their respective Houses, and ingoing to and returning from 
the same ; and for any speech or debate in either House, they 
shall not be questioned in any other place . 

Compensation of Members.—Under the Articles of Confed¬ 
eration, each State paid its own members of Congress. By 
providing for their payment from the national treasury, the 
Constitution makes them independent of the States. In the 
Convention Mr. Madison said that he could not see any 
chance of that stability in the general government, the want 
of which was a principal evil in the State governments, if the 
members were left dependent on the States for their compen¬ 
sation. 

In the British Parliament the members formerly received 
no compensation . 1 And in our Convention, Gen. Pinckney 
suggested, as the Senate was to represent the wealth of the 
country, that no salary be allowed. This was seconded by 
Franklin, but disagreed to, the vote standing six to five. 

The compensation is to be ascertained by law; that is, Con¬ 
gress itself is authorized by the Constitution to determine it. 
The First Congress passed an act fixing the allowance at six 
dollars a day while in attendance, and six dollars for each 
twenty miles of travel in going and returning. The speaker 

1 In 1911, however, an act of Parliament provided regular salaries for the members of 
the House of Commons. 


CONGRESSIONAL COMPENSATION 


1. VI. 1 


73 


of the House, besides his pay as representative, was to have 
six dollars a day additional. 

The rates have been changed repeatedly, making the com¬ 
pensation for different periods as follows: 

From 1789 to 1815, $6.00 a day. 

“ 1815 “ 1817, $1,500 a year. 

“ 1817 “ 1855, $8.00 a day. 

“ 1855 “ 1865, $3,000 a year. 

“ 1865 “ 1871, $5,000 a year. 

“ 1871 “ 1874, $7,500 a year. 

“ 1874 “ 1907, $5,000 a year. 

“ 1907 “-, $7,500 a year. 

The senators and representatives have received the same 
compensation except for one year, 1795, when the senators 
received $7.00 a day. 

The speaker of the House and the president of the Senate 
receive $12,000 a year. 

Mileage is allowed at the rate of ten cents a mile both going 
and returning by the nearest route for each regular session. 

Members of both houses are also allowed a certain sum for 
clerk hire, and are provided with various necessaries for the 
transaction of legislative business. 

The change made in 1816, from $6.00 a day to $1,500 a year, was re¬ 
ceived by the people with great disfavor, and many members were not 
returned to the next Congress in consequence. The change made in 1873 
»—March 3d, to take effect from March 4th, 1871—also called forth very 
severe criticism. The members were blamed for the large increase of 
salary, and still more for making it retroactive. A number of members 
refused to receive the increase for the time already expired. The retro¬ 
active feature is, however, not peculiar to the act of 1873. The law of 
1816—March 16th—was operative from March 4th, 1815. That of August 
16th, 1856, increased the compensation from March 4th, 1855. So that 
of July 28th, 1866, took effect from March 4th, 1865. But the act of 
February 26th, 1907, did not take effect till March 4th, 1907. 

All the acts prior to that of 1866 were separate and independent acts; 



74 


THE CONSTITUTION 


1. VL 2. 


but the acts of 1866, 1873, and 1907, were sections in appropriation bills. 
The acts of 1866 and 1873 were passed on the last day of the session. 

Freedom from Arrest.—The privilege of freedom from 
arrest has belonged to legislative bodies in Europe for many 
years. The exceptional cases are what are called indictable 
offenses. Whoever should cause the arrest of a member would 
be liable for trespass, and might also be punished for con¬ 
tempt of the house. The privilege commences from the time 
of the election, and before the member takes his seat or is 
sworn. 

Freedom of debate is secured by this clause. But the 
privilege is confined to words spoken in the course of parlia¬ 
mentary proceedings, and does not cover things done beyond 
the place and limits of duty. 

The privilege from arrest secures the member, of course, 
against all process, the disobedience to which is punishable 
by attachment of the person, as a subpoena or a summons to 
serve on a jury. 1 

Clause 2 .—No senator or representative shall , during the 
time for which he was elected , be appointed to any civil office 
under the authority of the United States whicii shall have 
been created , or the emoluments ichereof shall have been in¬ 
creased , during such time ; and no person holding any office 
under the United States shall be a member of either House 
during his continuance in office. 

Offices Forbidden to Members of Congress_The first part 

of this clause was intended to prevent corruption and secure, 
the integrity of the members. It would tend to diminish the 
temptation to create lucrative offices which they themselves 
might hope to fill. But the security is only partial, as an 
office created during the term of a member might be held by 
him many years after his membership had expired. 

The acceptance of an office under the United States, by 

1 Story, § 860-§ S66. 


1 . VI. 2 . OFFICES FORBIDDEN MEMBERS OF CONGRESS 75 

one who has been elected a member of Congress and has taken 
his seat, operates as a forfeiture of his seat. But if one hold¬ 
ing an office under the United States is elected to Congress, 
he may hold the office until he is ready to take his seat, when 
he must resign. 

A commission in the army is, no doubt, incompatible with the office of 
Congressman. During the Spanish-American war Joseph Wheeler, a 
member of the House of Representatives, became a Major General. At 
the close of hostilities he resumed his seat in the second session of the 
Fifty-fifth Congress. Action was taken by the House to declare his seat 
vacant. The resolution was referred to the Committee on Judiciary, which 
reported in favor of its adoption; but, owing to the popularity of Wheeler, 
it was not brought in by the committee until a few days before adjourn¬ 
ment. No action, therefore, was taken by the House, but Wheeler did 
not participate in the deliberations of the House during that session 

There is no provision in the national Constitution to prevent a con¬ 
gressman from holding a State office. Governor David B. Hill continued 
to exercise the office of governor of New York after his term as United 
States senator had begun. It began March 4th, 1891, and he did not cease 
to be governor until December 31st, 1891, though the Congress to which 
he had been elected commenced its sittings December 7th. 

Cabinet Officers in the United States and Great Britain.— 

In Great Britain, the members of the Cabinet may also hold 
seats in Parliament, but our Constitution prohibits Cabinet 
officers from being members of Congress. The subject has 
been often discussed, but no serious attempt has been made 
to amend the Constitution in this respect. By the present 
arrangement, the legislative and executive departments of 
the government are more widely separated, and any undue 
influence of the executive is better guarded against. 

This practice shows the crucial difference between the United States 
and other governments. In the United States the three functions or de¬ 
partments of government are kept absolutely separate except in two or 
throe instances where modification is necessary for harmony and safety, 
as in the veto power of the executive, the treaty-making and the confirm¬ 
ing power of the Senate, and, owing to the peculiar importance of the sub¬ 
ject, the process of impeachment. 


76 


THE CONSTITUTION 


1 . vn. i 


Sec. 7, Clause I .—All bills for raising revenue shall orig¬ 
inate in the House of Representatives; but the Senate may 
propose or concur ivith amendments as on other bills. 

Bills for Revenue.—This clause corresponds to the practice 
in the British Parliament. The House of Commons early 
asserted (and. has since maintained) the exclusive right to 
originate revenue bills, in order to control the King. It 
used this right as a means of preventing him from waging 
war without its consent, and of forcing him to recognize 
the authority of Parliament in order to secure funds for the 
conduct of the government. The subject was discussed at 
great length in the Convention, and was not finally decided 
till near the day of adjournment. It was so connected with 
other provisions of the Constitution as to render it difficult to 
ascertain by what principles it was settled. As first acted 
upon by the Convention, the clause was much more compre¬ 
hensive than in its present form : “ That all bills for raising 
or appropriating money, and for fixing the salaries of the 
officers of the government of the United States, shall origi¬ 
nate in the first branch of the legislature, and shall not be 
altered or amended by the second branch.” 

Our circumstances differ so widely from those of Great Britain that 
there seems to be no sufficient reason why the Senate should not have been 
permitted to originate bills for raising revenue as well as to amend them; 
why they should not have been permitted to provide for raising revenue as 
well as to make appropriations. During the third session of the Forty- 
first Congress, the Senate passed a bill to repeal the law imposing the 
income tax But the House of Representatives, instead of acting upon it 
in the usual way, passed a resolution calling the attention of the Senate 
to this clause of the Constitution. 

Bills looking to the raising of money have originated in the 
Senate and have passed into laws: as the bill to establish the 
post office, that to establish the mint, and bills to regulate 
the sale of the public lands. “ Raising revenue ” is under¬ 
stood thus to be confined to levying taxes. 


1 . vn. 2 . THE PRESIDENT AND LEGISLATION 77 

Clause 2.— Every bill which shall have passed the House of 
Representatives and the Senate, shall, before it become a law, 
be presented to the President of the United States ; if he ap¬ 
prove he shall sign it, but if not he shall return it, with his 
objections, to that House in which it shall have originated, who 
shall enter the objections at large on their journal, and pro¬ 
ceed to reconsider it. If after such reconsideration two thirds 
of that House shall agree to pass the bill, it shall be sent, to¬ 
gether with the objections, to the other House, by which it shall 
likewise be reconsidered, and if approved by two thirds of that 
House, it shall become a law. But in all such cases the votes 
of both Houses shall be determined by yeas and nays, and the 
names of the persons voting for and against the bill shall be 
entered on the journal of each House respectively. If any bill 
shall not be returned by the President within ten days ( Sun¬ 
days excepted ) after it shall have been presented to him, the 
same shall be a law , in like manner as if he had signed it, 
unless the Congress by their adjournment prevent its return, 
in which case it shall not be a law. 

The President and Legislation ; the Veto.—This clause 
gives the President some participation in legislation. The 
executive and legislative departments are not entirely dis¬ 
joined. But the President’s participation is negative. This 
returning of a bill with objections is called vetoing the bill, 
though the word veto does not occur in the Constitution. In 
Great Britain the sovereign possesses an absolute veto, but it 
is said not to have been exercised since 1707, in the reign of 
Queen Anne. 

In the Convention, various plans were discussed for revising the bills 
passed by Congress. One was to give the right of revising all bills to the 
executive and the judiciary. This was Mr. Randolph’s plan, and was 
approved by Mr. Madison. Some members wished the President to have 
an absolute veto. At one time the Convention voted in favor of requiring 
a vote of three fourths of each house in order to pass a bill over the Pres* 
ident’s veto. 


78 


THE CONSTITUTION - 


1. VII. 2. 


Veto in the States.—The present method has commended 
itself to the people of the country. It is, doubtless, better 
than one admitting an unqualified veto, and better than one 
that should require a three fourths vote in each house. The 
practice in the State governments is not uniform. In one 
the governor has no veto, while in others a bill may be passed 
over a veto by a bare majority in each house. In about two 
thirds of the States the governor may veto one or more items 
in an appropriation bill and approve the others. 

Vetoes by the Presidents.—The veto power has been used 
by most of the Presidents. In the first forty years, there 
were no bills vetoed by John Adams, Jefferson, or John 
Quincy Adams. Washington vetoed two bills ; Madison ve¬ 
toed five and retained one ; Monroe vetoed one. In later 
years the veto power was used more freely. Several Presidents 
vetoed between four and twenty bills each; Grant vetoed forty- 
one, and Cleveland three hundred and forty-three. Most of 
Cleveland’s vetoes were during his first administration, and 
most of the bills he vetoed were of little importance, being for 
the purpose of granting small pensions to soldiers of the civil 
war or to their widows or orphans under circumstances not 
covered by the general pension laws. No bill was passed over 
the veto of a President till the administration of Mr. Tyler. 
One was so passed in his administration ; five in that of Mr. 
Pierce ; fifteen in that of Andrew Johnson ; four in that of 
Grant; one in that of Hayes ; one in that of Arthur ; two in 
that of Cleveland ; and one in that of Harrison. 

It has been decided by the Senate that only two thirds of 
the members present are requisite to pass a bill over the Presi¬ 
dent’s veto, and not two thirds of the whole Senate. 

Methods of Legislation.—There are three methods by which 
a bill may become a law. (a) If it is passed by a majority of 
each house and is signed by the President, (b) Without the 
signature of the President, if it receives the votes of two 
thirds of the members present of each house, after having 


i. vn. 3. 


THE PRESIDENT MAY VETO 


79 


been returned by the President with his objections, (c) If, 
having been passed by each house, and sent to the President, 
it is retained by him ten days (Sundays excepted), provided 
that Congress has not adjourned in the meantime. 


The method (c) is rarely used. The Revenue Bill of 1894 became a law 
in this manner, without the signature of President Cleveland. He was 
opposed to some of the provisions of the bill, especially the tariff meas¬ 
ures, and refused to ratify that legislation with his official signature. As 
the government would have been without funds to defray running expenses 
unless this bill became a law, or a substitute for it was passed, and as 
Congress could not be expected to agree upon a substitute, Mr. Cleveland 
did not veto it but permitted it to become a law by not returning it to Con 
gress within ten days. 


In some States the governor may sign a bill after the 
adjournment of the legislature ; in New York, within thirty 
days. The Constitution of the United States is silent in 
regard to this point. One instance, however, of approval of 
a bill by the President after the adjournment of Congress, is 
given in the Statutes—the act approved March 12th, 1863, 
nine days after the expiration of the Thirty-seventh Con¬ 
gress. 

Clause 3 .—Every order, resolution, or vote to which the 
concurrence of the Senate and House of Representatives may 
be necessary (except on a question of adjournment) shall be 
presented to the President of the United States ; and before 
the same shall take effect, shall be approved by him, or being 
disapproved by him, shall be repassed by two thirds of the 
Senate and House of Representatives, according to the rules 
and limitations prescribed in the case of a bill. 

Resolutions Require the Approval of the President.—This 
clause prevents the passage of laws under the name of reso¬ 
lutions, etc., without the approval of the President. The 
process is the same, no matter what may be the term em- 


80 


THE CONSTITUTION 


i. vn. s. 


ployed, whether order, resolution, vote, or bill. Whatever 
does not relate to the internal government of the individual 
house, as elections, votes of censure or thanks, etc., requires 
the signature of the President, or a two thirds majority in 
each house. A joint resolution, approved by the President, 
or duly passed without his approval, has all the effect of law. 

A resolution of Congress proposing an amendment to the Constitution 
does not require the signature of the President, though in one or two 
cases such resolutions have been sent to him through inadvertence. In 
February. 1865, Congress passed a joint resolution that the electoral votes 
for President and Vice President, given in certain States then in rebellion 
against the government, should not be received or counted. The Presi¬ 
dent approved the resolution, but said in a message that his approval was 
not necessary. (The electoral votes were counted on the 8th, though the 
official approval of the President was not received till the 10th.) In 
March, 1866, the two houses determined that neither house should con¬ 
sider the credentials of any man presented as a member from a State 
lately declared to be in rebellion, until Congress should have decided that 
such State was entitled to representation therein. This resolution was 
not sent to the President. 

Concurrent and Joint Resolutions.—In the financial controversy over 
the free coinage of silver in 1896, the Matthews Resolution became a 
prominent subject of debate and it was appealed to as morally if not 
legally binding the government. It was a resolution introduced into the 
United States Senate by Stanley Matthews, senator from Ohio (1877 81), 
expressing the purpose of Congress to redeem and pay all the government 
obligations in gold and silver according to the option of the government. 
It was not signed by the President or submitted to his consideration It 
was a resolution of the two houses of Congress expressing the sentiments 
of the legislative department upon a financial proposition. It did not 
enact anything or bind the government. It was not binding on Congress 
itself and did not require a repeal The Matthews Resolution was a u con¬ 
current,” not a “ joint,” resolution. 

By the Constitution of the United States and the rules of the two 
houses no absolute distinction is made between bills and joint resolutions, 
either in regard to the mode of proceeding with them before they become 
laws, or in regard to their force and effect afterwards. For more than 
fifty years, however, a very marked distinction seems to have been recog¬ 
nized in the legislation of Congress, and the, form of joint resolution was 


i. vra. i. 


POWERS OF CONGRESS 


81 


resorted to chiefly for the following purposes, viz. : to propose an amend¬ 
ment to the Constitution ; to express the sense of Congress; to construe 
provisions in former laws; to admit new States; and to direct or regulate 
the printing of documents Until the Twenty-seventh Congress no 
instance is found of an appropriation elsewhere than in a bill The old 
distinction between bills and joint resolutions is obsolete and they are- 
governed by the same rules. s 

Concurrent resolutions are used where the assent of the two houses 
only is considered necessary. The practice for many years has been not 
to present them to the President for approval. 


Sec. 8, Clause I.— The Congress shall have power to lay 
and collect taxes, duties, imposts, and excises, to pay the debts 
and provide for the common defense and general welfare of the 
United States ; but all duties, imposts, and excises shall be 
uniform throughout the United States ; 

The Powers of Congress —In Article I., Section 1 , it is 
declared that all legislative powers granted in the Constitu¬ 
tion shall be vested in a Congress of the United States. In 
Section 8 it is declared more specifically that Congress shall 
have power, i.e., rightful authority, to legislate on various 
subjects. But it is not intended that this shall be considered 
an exhaustive enumeration of the powers of Congress, or 
that Congress shall not legislate except on the matters here 
mentioned ; for the eighteenth clause gives Congress power 
“ To make all laws which shall be necessary and proper for 
carrying into execution the foregoing powers, and all other 
powers vested by this Constitution in the government of the 
United States, or in any department or officer thereof.” The 
Constitution itself in other sections requires of Congress the 
exercise of powers not specifically mentioned in this section; 
and it implies in various places that Congress must do what 
it is nowhere in the Constitution expressly authorized to do. 
Some of these cases will be cited, and the subject will be still 
further discussed, in connection with the consideration of the 
eighteenth clause. 

A O.—fi 


82 


THE CONSTITUTION 


i. vin. i 


Power of Taxation. —Every civil government must have a 
revenue for its own support, and the subject of raising funds 
is appropriately placed in this first clause. Under the Arti¬ 
cles of Confederation the common treasury was supplied by 
the several States, in proportion to the value of the land with 
the buildings and improvements. Taxes were not laid and 
collected by the general government, but were levied by the 
authority and direction of the legislatures of the several 
States. The subject was discussed in the Convention with 
great earnestness, and the result was to give to Congress the 
control of the whole subject of taxation and revenue so far as 
relates to the administration of the general government. 

The obvious construction of the language of the clause 
makes it confer upon Congress the power to raise a revenue 
for the purpose of paying the debts and providing for the 
common defense and general welfare. This involves the 
power to pay the debts and provide for the general welfare. 

The four terms used, taxes, duties, imposts, and excises, 
were originally of nearly the same signification. They imply 
pecuniary burdens imposed by a civil government upon its 
subjects. This clause distinguishes between taxes and the 
others, inasmuch as it states that “ all duties, imposts, and 
excises shall be uniform throughout the United States.” In 
Article I., Section 2, Clause 3, representatives and direct taxes 
are required to be apportioned among the several States in 
proportion to their population. 

Direct Taxes.—In modern political economy, that is a direct 
tax which comes from the property of the nominal payer, while 
an indirect tax is assessed on one person but may be really 
paid by another; thus duties on goods imported are indirect, 
as the consumer pays them, while poll taxes and those imposed 
directly on property are direct. But the constitutional mean¬ 
ing of “direct” tax is historical rather than theoretical; 
and the courts have decided that taxes on carriages, for ex¬ 
ample, are not direct taxes, though political economy would 


I. VIII. 1. 


TAXES BY THE UNITED STATES 


83 


so regard them. So, also, of taxes on incomes (other than 
incomes from real or personal property), and on inheritances. 
By decisions of the Supreme Court, direct taxes, in the sense 
of the Constitution, are of two kinds only : (a) those on real 
or personal property (including income from real or personal 
property), 1 and (6) capitation or poll taxes. 

Taxes by States and by the United States _The taxes 

levied by the State governments, by counties, and by cities 
and towns, are for the most part direct taxes. The revenues 
of the general government are almost wholly from indirect tax¬ 
ation. Congress has never levied a general tax on all the 
property of the country. Until the time of the civil war the 
general government derived nearly all its revenues from duties 
on goods imported into the country. 

Before that time, a direct tax had been laid but four times since the 
adoption of the Constitution, viz., in 1798, 1813, 1815, 1816. In these 
cases, the tax was upon lands, houses, and slaves. The amount of tax to 
be paid by each State was named in the act, and was in proportion to the 
population, and not according to the property of the State. In one or two 
cases the amount of tax assessed upon each county of the several States 
was given. In the act of 1798, the tax on each slave was fifty cents. In 
the others all the property taxed was to be assessed at its true value. In 
each case the tax was in force but a single year. 

Direct Tax of 1861 . —In August, 1861, after an interval of 
forty-five years, another direct tax was levied. This was 
done in consequence of the civil war. The act required that 
twenty millions of dollars a year be levied on all lots of 
ground, with their improvements and dwelling houses. The 
amount was apportioned among the States and Territories 

1 In 1894 a law was enacted taxing all incomes over $4000 per annum. The Supreme 
Court decided that as far as it related to rents and other incomes from real estate, and to 
income from personal property, it was a direct tax, and therefore unconstitutional for 
being uniform instead of being apportioned among the States according to population. 
For this and other reasons the whole tax was declared unconstitutional and void. Not 
until the adoption of the Sixteenth Amendment to the Constitution in 1^13 did Congress 
pass another income tax law. 


84 


THE CONSTITUTION 


1. VIII. 1. 


and the District of Columbia, according to their population, 
as required by the Constitution. 1 The law provided that any 
State or Territory might collect its quota, and be allowed fifteen 
per cent of the amount for the expense of collection. All 
the Northern States and Territories, except Delaware and 
Colorado, assumed the payment of the tax. 2 This law, like 
the others of an earlier period, was in force but one year. 
By act of July 1st, 1862, its operation was suspended, save 
as to the collection of the first annual tax, until April 1st, 
1865. 3 By act of June 30th, 1864, it was again suspended 
till Congress should take further action. 4 

Import Duties.—The second act passed by Congress after 
the adoption of the Constitution was, “for laying a duty on 
goods, wares, and merchandises imported into the United 
States.” All civilized nations adopt this as one of the meth¬ 
ods of raising revenue. There is a great diversity of opinion 
as to the articles upon which duties shall be levied ; whether 
it is or is not expedient to impose duties upon those which 
would come into competition with the products of the coun¬ 
try itself. It is worthy of notice that the act last men¬ 
tioned, which was passed July 4th, 1789, had a preamble as 
follows : “ Whereas, it is necessary for the support of govern¬ 
ment, for the discharge of the debts of the United States, and 
the encouragement and protection of manufactures, that du¬ 
ties be laid on goods, wares, and merchandises imported : Be 
it enacted,” etc. 

We have seen that until 1861 direct taxes had been levied 
for only four years since the adoption of the Constitution ; 
but duties on goods imported have been collected from the 
first, and for most of the time have formed the chief source 
of revenue. The “ tariff” laws, under which these duties 

* The Territo-ies had not been named in any previous act imposing direct taxes; nor 
the District of Columbia, prior to 1815. 

a Report of Commissioner of Internal Revenue for 1870, page 14. 

8 Statutes at Large, XII., 489. 

« Ibid, XHL, 304. 


i. vin. i. 


EXCISE DUTIES 


85 


have been collected, have many times been changed ; and the 
disputes over the tariff question have been among the most 
prominent in the strife of political parties. As a matter of 
law it is settled that tariff laws framed for the purpose of 
protecting manufactures are constitutional; but many states¬ 
men have held that such acts are outside the scope of powers 
which the framers of the Constitution intended should be 
delegated by that instrument to the general government. 

Excise Duties. —The term excises , though used in the Con¬ 
stitution, does not appear in the laws enacted by Congress 
before 1909. As commonly used, it signifies all taxes not direct , 
except duties on imports and exports. In a narrower meaning, 
it is a tax upon the production of commodities. Thus, dis¬ 
tillers pay a tax of so much a gallon on the whisky they manu¬ 
facture, and oil refiners have paid a similar tax. 

Before the civil war the great part of the revenue raised by 
the United States had come from duties on goods imported— 
“ customs ” duties. In July, 1862, an act was passed to pro¬ 
vide “ internal revenue.” It imposed duties on a great variety 
of manufactured articles, on divers trades and occupations, as 
also on carriages, plate, etc., etc. It was so comprehensive 
that the revenue produced by it in the year 1866 amounted to 
the enormous sum of $309,000,000. 

Duties of this kind had been laid in a few instances before, 
though on a very limited scale. In 1791 there was a duty on 
spirits distilled in the United States. In 1794 carriages were 
taxed and duties were laid on sugar refined and on snuff man¬ 
ufactured. About the same time auction sales were taxed and 
stamp duties imposed. 

In April, 1802, an “Act to repeal the Internal Taxes,” swept aAvny 
“ the internal duties on stills and domestic distilled spirits, licenses to re¬ 
tailers, sales at auction, carriages for the conveyance of persons, and 
stamped vellum, parchment, and paper.” But in 1813 these were re¬ 
stored, aud the office of Commissioner of the Revenue was established, 
“ for superintending the collection of the direct tax and internal duties.” 


86 


THE CONSTITUTION 


1 . vm. L 


In 1815, the list of manufactured articles on which internal duties were 
levied was largely increased, and taxes were imposed also upon household 
furniture and gold and silver watches. 

Duties, etc., Uniform —All these taxes—they are called 
duties in the statutes of the United States—were required to 
be uniform by the Constitution. Thus, if upon a promissory 
note for a given sum a certain duty was levied in one State, 
the same duty must be paid upon a note of the same amount 
in every other State. If the owner of one gold watch was re¬ 
quired to pay a tax of one dollar, every one owning a gold 
watch must pay a like sum. But direct taxes must be in pro¬ 
portion to the population of the State. If two States are 
equal in population, their citizens must pay to the general 
government the same aggregate amount of direct taxes, though 
the citizens of one State may possess twice as much property 
as those of the other. 

Income Taxes. —The act of Congress of 1861, which levied 
a direct tax on the States and Territories, provided also for an 
income tax, believed to be the first ever levied by our general 
government. The constitutionality of this act was questioned 
by some on the ground that in political economy an income 
tax is regarded as a direct tax. The Supreme Court decided 
that it was not a direct tax in the sense of the Constitution. 
The tax was three per cent per annum on the excess of in¬ 
come over eight hundred dollars. In 1865 it was changed to 
five per cent on the excess of income over six hundred dollars ; 
but ten per cent on the excess over ten thousand. For the 
years 1870 and 1871 it was two and one half per cent on the 
excess of income over two thousand dollars. Since the adop¬ 
tion of the Sixteenth Amendment to the Constitution in 1913 
Congress has levied a tax on the net income in excess of $3000 
($4000 for husband and wife living together). 

Amount of Revenue—The income to the government from internal 
revenue from 1791 to 1849 was about $22,000,000, ranging from about 


1. VIII. 2. 


BORROWING MONEY 


87 


$200 in 1843 to $5,124,708 in 1816. During the same period the income 
from customs was about $946,000,000. Butin the year 1866 the income 
from internal revenue was over $309,000,000, that from customs being 
about $179,000,000. From 1869 to 1897 (except 1894) the receipts from 
customs exceeded those from internal revenue, the tax having been taken 
off various manufactured articles. In June, 1898, a war revenue bill 
was passed, which greatly increased the internal taxes. An important 
feature of this act was the provision requiring stamps upon commercial 
paper, bonds, leases, deeds, powers of attorney, stocks, telegraph mes¬ 
sages, etc. Stamps were also required upon proprietary medicines and 
other articles. Another important feature of the act of 1898 was the im¬ 
position of an inheritance tax on legacies or distributive shares arising 
from personal property and worth over $10,000. In the year ending 
June 30th, 1900, the customs receipts were about $233,000,000, and the 
internal revenue was about $295,000,000. The war revenue taxes were 
soon repealed, but in 1909 a “special excise tax” was imposed on the 
net income of corporations above $5000 a year, and in 1913 the entire 
income was made subject to taxation. In 1914 owing to the loss in 
revenue occasioned by the war in Europe Congress levied another war 
revenue tax. The income in the fiscal year 1915 was, from customs, about 
$210,000,000, and from internal revenue, about $416,000,000. 

Clause 2. —To borrow money on the credit of the United 
States ; 

Borrowing Money. —In time of peace, the ordinary reve¬ 
nues of a nation should be sufficient to pay the expenses of 
its government; but in time of war these will be insufficient, 
and debts must be incurred. All nations possess this power 
of borrowing money, and all have exercised it. The usual 
mode of making loans is to issue the bonds of the government, 
which are its promises to pay the sums specified, at a given 
time, and with interest at given rates. These bonds are then 
sold at the best rates the government can command, usually 
at par or at a premium. 

United States Bonds. —The United States has issued 
bonds from time to time since the formation of the govern¬ 
ment; though these were held by only a few persons until 
the civil war made large loans necessary. Then efforts were 


88 


THE CONSTITUTION 


i. vin. *. 


made to circulate them among the people, and with such 
success that multitudes purchased United States bonds who 
had never before seen securities of this character. The issues 
were of various denominations, $50, $100, $500, $1,000, and 
so on. 

The bonds of the United States can not be taxed by the 
State governments, according to a decision of the Supreme 
Court, even if the bonds themselves contain no stipulation to 
that effect. 

The Public Debt of the United States, on the 1st of January, 1791, was 
about $75,000,000. In 1816, at the close of the second war with Great 
Britain, it was over $127,000,000, which within about twenty years was 
entirely paid. In 1861 (July 1st) the debt was $90,000,000, and in 1866 it 
was $2,773,000,000. On the 1st of July, 1891, it was $1,560,000,000; on 
July 1st, 1911, $2,765,000,000; but the interest-bearing debt in 1891 was 
only $611,000,000 and in 1915 only $971,000,000. The advantages of 
distributing the payment of a debt over a period of years are obvious. 
The country is every year becoming richer, and thus more able to pay off 
its indebtedness. What would have been an insupportable burden at the 
creation of the debt, becomes, in the lapse of years, tolerable and easy. 
At the same time, the temptation to postpone unduly the payment of prin¬ 
cipal should be steadily resisted. The ordinary expenses of the govern¬ 
ment will always call for heavy taxes, without adding to them interest on 
debts. 

The Government in Good Credit—At the close of the civil 

war the government was paying six per cent interest on 
nearly all its indebtedness ; but the country lias advanced so 
rapidly in material prosperity, and the national finances have 
been so wisely managed, that the rate fell to three per cent. 
In 1900 provision was made for refunding the debt by the 
issuance of bonds payable in gold and bearing interest at the 
rate of two per cent; but the demand for these bonds was 
due largely to the use made of them in the national banking 
system. 

A portion of our present public debt is in the form of 
treasury notes, commonly called legal tenders, which are cir- 


1. VIII. 


POWER TO REGULATE COMMERCE 


89 


ciliated as money, and on which the government pays no in- 
terest. The power to issue these comes from this clause (to 
borrow money) but it will be more convenient to consider 
them under another clause. (See page 113.) 

Clause 3 .—To regulate commerce with foreign nations , 
and among the several States, and with the Indian tribes ; 

Commerce before the Constitution.—Prior to the adoption 
of the Constitution the power to regulate commerce was not 
in Congress, but in the several States. Each State was able 
to make such regulations as its own interests seemed to re¬ 
quire, without regard to the influence upon its neighbors. 
“ The States through whose ports the natural or artificial 
channels of trade principally passed, were able to exact a 
revenue from those which were less favorably situated for 
commercial purposes.” It was on account of the difficulties 
and irritations growing out of these commercial regulations 
that a convention of commissioners from various States was 
held at Annapolis in September, 1786, which convention 
recommended the one that framed the present Constitution 
in the year 1787. 

Commerce now Controlled by Congress.—As appears from 
this third clause, the whole control of the subject of commerce, 
both with foreign nations and among the several States, and 
also with the Indian tribes, is placed by the Constitution not 
with the States but with the general government. Under 
the Articles of Confederation, each State levied duties on 
imports and exports as it pleased, and this, not only as re¬ 
garded foreign countries, but with reference to commerce 
between contiguous States. But now there can be no restric¬ 
tions on trade between two States, and all duties on goods 
imported from other countries must be “ uniform.” The 
nation has the exclusive power over commerce, and without 
this it would hardly deserve the name of a nation. 


90 


THE CONSTITUTION 


i. vra. 8. 


“ To regulate ” commerce is to prescribe rules by which it 
is to be carried on. “ With foreign nations” means with the 
people of those nations. Congress, and not the States, pre¬ 
scribes the rules of commercial intercourse between the peo¬ 
ple of the United States and those of foreign countries, and 
between the people of any one State and those of all the other 
States. 

Extent of the Commercial Power. —“ In the practice of the govern¬ 
ment, the commercial power has been applied to embargoes, non-inter¬ 
course, non-importation, coasting-trade, fisheries, navigation, seamen, 
privileges of American and foreign ships, quarantine, pilotage, wrecks, 
lighthouses, buoys, beacons; obstructions in bays, sounds, rivers, and 
creeks; inroads of the oceans, and many other kindred subjects; and, 
doubtless, includes salvage, policies of insurance, bills of exchange, and 
all maritime contracts, and the designation of ports of entry and delivery. 

u Wherever the power of Congress extends, they are the exclusive 
judges of the proper reasons and motives for exercising it, and are not to 
be controlled by any allegation that it was done for a purpose not contem¬ 
plated in the original grant. This commercial power has been employed 
for the purpose of prohibition, reciprocity, retaliation, and revenue— 
sometimes, also, to encourage domestic navigation and manufactures, by 
bounties, discriminating duties, and special privileges and preferences, 
and to regulate intercourse, with a view to mere political objects; and 
the right to do so has been sustained by the unequivocal voice of the 
nation.” 1 

The Embargo of 1807 —In December, 1807, under the 
administration of Mr. Jefferson, an embargo act was passed. 
It provided “That an embargo be laid on all ships and ves¬ 
sels in the ports and places within the limits or jurisdiction 
of the United States, cleared or not cleared, bound to any 
foreign port or place ; and that no clearance be furnished 
to any ship or vessel bound to such foreign port or place, ex¬ 
cept vessels under the immediate direction of the President 
of the United States.” 2 

Under the power “to regulate commerce” Congress thus 

» Farrar, page 328. 9 U. S. Statutes, n., page 451. 


L. vm. 3. 


POWER TO REGULATE COMMERCE 


91 


passed a law prohibiting every American merchant vessel from 
leaving port; and this, not for a limited period, but without 
limitation of time. This law was repealed, however, in 
March, 1809. 

An act to prohibit the importation of certain goods from Great Britain 
and her colonies was passed in April, 1806; and one to interdict the com¬ 
mercial intercourse between the United States and Great Britain and 
France was passed in March, 1809. An act prohibiting the sending of 
lottery tickets from one State to another was held to be constitutional by 
a decision of tbe Supreme Court rendered in 1903. 

Commerce with the Indians. —The power to regulate com¬ 
merce with the Indian tribes is given to Congress. The ex¬ 
clusive right of preemption to the Indian lands is with Con¬ 
gress, and neither States nor individuals can purchase lands 
from the Indians. An Indian tribe is not a foreign nation, 
but a people in a condition of dependence or pupilage, sus¬ 
taining to the United States the relation of a ward to a 
guardian. 

Interstate Commerce. —What is a regulation of interstate 
or foreign commerce has been determined by a long course of 
decisions by the United States Supreme Court in cases liti¬ 
gated before it. Obviously every State ordinance which in 
some remote manner affects commerce can not be held to con- 
; diet with the power vested, by this clause, in Congress. A 
State must make many regulations of local concern looking to 
the raising of revenue, and the protection of the life, health, 
morals, and commercial welfare of its citizens. The power to 
do these things is called the police power . Many laws made in 
tiie exercise of this power will to some extent affect interstate 
commerce, but that does not necessarily mean that they are 
void as conflicting with the power vested in Congress. The 
police power of the States is just as sacred as the commerce 
power of the United States. It is often hard to define the le¬ 
gitimate exercise of the two powers, and each case has to be 
decided by the courts upon its own merits. 



92 


THE CONSTITUTION 


i. vm. 8. 


There are several classes of laws which are subject to ex¬ 
amination in connection with this clause. 

1. Laws upon interstate subjects which, owing to the 
character of such subjects, should be uniform throughout 
the United States—in which uniformity is required. 

2. LaWs upon subjects which do not require but permit 
uniformity throughout the United States. 

3. Laws upon subjects which do not permit, much less re¬ 
quire, uniformity, such as harbor regulations and policing of 
steamboat landings. 

State and National Laws on Interstate Commerce.—There 
are two views about the authority to regulate interstate com¬ 
merce. The first view is that the power to regulate is ex¬ 
clusively in Congress and that no State regulations are valid 
even though Congress has not legislated upon the subject. 
Those holding this view, however, have also held a modified 
view that Congress can by legislation expressly adopt even in 
advance any legislation a State may enact upon a particular 
subject. It has been decided that Congress can adopt in ad¬ 
vance the liquor laws which a State may enact, though affect¬ 
ing interstate commerce. 

The second view is that interstate commerce is open to State 
regulation until Congress acts upon it or indicates that the 
subject is to be left free and open ; but when Congress acts, 
by passing laws. State legislation conflicting therewith is void. 

The first of these views is the one generally followed by the 
United States Supreme Court. In applying it to the forego¬ 
ing classification the following result is reached. 

Subjects which do not permit uniformity are invariably left 
to State legislation unless Congress has legislated upon the 
subject, in which case the provisions of Congress override the 
State enactment. 

Subjects which require uniformity are invariably within the 
exclusive power of Congress, and in no event have the States 
power to legislate upon them. 


i. vm. 3 . 


POWER TO REGULATE COMMERCE 


93 


In subjects which permit but do not require uniformity it 
is not easy to state what is positively the law. The tendency 
of the United States Supreme Court decisions has been to 
keep these subjects also within the exclusive jurisdiction of 
Congress. The law, however, is not settled upon this class of 
cases. 

A State can not grant an exclusive right to navigate one of its rivers or 
regulate it by tolls. It can, however, establish wharfage charges which 
are reasonable for that purpose and not in conflict with provisions of Con¬ 
gress It can not make unreasonable quarantine regulations or charges, 
but can make reasonable ones for protection to the health of its own citi¬ 
zens. It can not tax the business of corporations engaged in interstate 
commerce, but it can tax their property. It can not make any distinction 
in taxation between the property of a corporation engaged in interstate 
business and one whose operations are confined to its own State. A State 
can, however, prescribe the conditions upon which a corporation chartered 
under another State shall be permitted to conduct its business within the 
State, provided the corporation is not engaged in interstate commerce. 
Insurance companies are thus compelled to make deposits in State treas¬ 
uries and comply with other conditions. A law forbidding the citizens of 
a State to insure their property in other companies than those organized 
within the State is void as regulating commerce. A State tax on the 
gross receipts of a railway engaged in interstate commerce is void for be¬ 
ing a regulation of that commerce. Requiring such railways to stop all 
trains at county seats is such regulation and therefore void. But a State 
law requiring all locomotive engineers to be examined as to eyesight is a 
valid law for protection to life and property. 

The Interstate Commerce Act—The first important gen¬ 
eral act for the regulation of interstate commerce by Con¬ 
gress was passed in 1887. This provided for a commission 
of five members to supervise interstate railroads. In 1906 
the powers of the commission were enlarged, and their scope 
extended also to express companies, sleeping car companies, 
and petroleum pipe lines. The commission now consists of 
seven members, appointed by the President with the con¬ 
sent of the Senate, each holding office seven years, and draw¬ 
ing a salary of $10,000 a year. The president of the first 


94 


THE CONSTITUTION 


1. VIII. 3. 


commission was the renowned constitutional scholar, Hon. 
Thomas M. Cooley, of Michigan. 

The Interstate Commerce Commission is organized after the manner of 
a court of law and sits principally in Washington, D. C., but holds ses¬ 
sions all over the United States a3 occasion requires. It is, however, not 
a branch of the judicial department of the government, but of the execu¬ 
tive. It is faintly analogous to the Court of Claims, which is vested with 
quasi-judicial powers, though really a branch of the legislative department 
and not a part of the judicial system of the United States. Cases of 
which the commission takes cognizance are heard like cases in court, and 
the United States courts and marshals are charged with the duty of serv¬ 
ing subpoenas upon witnesses and with carrying into execution the deci¬ 
sions of the commission, by means of injunctions and other legal means. 

The act declares that all railway rates must be reasonable. 
The commission is authorized to fix maximum rates between 
shipping points for the lines there operating. This is a legis¬ 
lative power vested in the commission. 

Every interstate road must adopt a classification of freight 
and must adopt a schedule of rates for each class. It must 
file copies of these schedules with the commission and must 
post or keep them in all depots for inspection by the public. 
Rates can not be lowered or raised after adoption except after 
notice to the commission of the intention of the road to do 
so. Giving any preference in the form of rebate or otherwise 
to any person, firm, or locality is strictly forbidden and made 
unlawful. One feature of the law is the provision forbidding 
a railway to charge more for a short haul than for a long one 
which includes, as part of the distance travelled, the shorter 
one. Other provisions (enacted in 1906) forbid the giving 
of interstate passes except to employees, destitute persons, 
and a few others; and practically prevent railroads from 
engaging in the business of mining coal or producing any 
other product (except timber) anywhere for sale in other 
States. 

The Pure Foods Act, 1906. —Congress has also begun 


1. YIU. 8. POWER TO REGULATE COMMERCE 95 

to control the quality of certain goods entering into inter¬ 
state commerce. The act of June 30, 1906, forbids, under 
penalties, the shipment of adulterated or misbranded foods, 
drugs, and liquors from one Territory or State into another ; 
specifies in detail many kinds of adulteration thus prohibited 
in goods entering into interstate commerce; and requires 
that food preparations entering into interstate commerce 
shall bear labels stating their ingredients. 

The Law against Trusts.—By an act passed in 1890 every 
contract, combination in the form of trust, or conspiracy, in 
restraint of trade among the States or with foreign nations, 
was declared illegal. Actual or attempted monopoly of part 
or all of the trade between States was made punishable by fine 
and imprisonment. The United States courts were given juris¬ 
diction to enforce this act by injunction or other means. Dis¬ 
trict attorneys might institute suits for this purpose. Property 
owned by such a combination might be seized in course of 
transportation. Under this act two large railroad associa¬ 
tions, the Trans-Missouri Traffic Association and the Joint 
Traffic Association, were dissolved. They were associations 
of railroads for controlling and dividing the interstate com¬ 
merce among their members and regulating the price of 
carriage. 

By an act passed in 1894 every combination, conspiracy, 
trust, or contract was declared to be against public policy and 
illegal when made by two or more corporations either of 
which is engaged in importing any article from any foreign 
country, and when such combination is intended to operate 
in restraint of trade or of free competition in commerce or to 
increase the market price of any article imported or manu¬ 
factured from such imported article. United States courts 
were given the same power to enforce this statute as to en¬ 
force the act of 1890. 

Most States have also passed statutes forbidding such con¬ 
tracts and combinations, formed by many manufacturers for 


96 


THE CONSTITUTION 


1. VIII. 4. 


the purpose of controlling the market for their products and 
regulating prices. Such combinations are known as trusts. 

By an act passed by Congress in 1914 price discrimination 
among purchasers and exclusive trade agreements between 
manufacturers and retailers are prohibited. In order to en¬ 
force the provisions of the anti-trust laws a Federal Trade 
Commission was also created in 1914. It consists of five 
members appointed by the President. The commission ex¬ 
ercises supervision over all corporations engaged in interstate 
business except those under the control of the Interstate Com¬ 
merce Commission. 

Clause 4 . —To establish an uniform rule of naturaliza¬ 
tion, and uniform laws on the subject of bankruptcies 
throughout the United States ; 

Citizenship.—Naturalization is the conferring of citizen¬ 
ship. By it an alien or foreigner is made a citizen. Neither 
the Constitution nor any act of Congress defines citizenship, 
but by the Fourteenth Amendment “ all persons born or 
naturalized in the United States, and subject to the jurisdic¬ 
tion thereof, are citizens of the United States and of the 
State wherein they reside.” “ A citizen is a member of the 
body politic, bound to allegiance on the one side, and entitled 
to protection on the other.” (Attorney-General Bates.) 

Citizens are either native-born or naturalized. Every per¬ 
son born in the country is, from the time of birth, prima 
facie a citizen. An alien can become a citizen only by the 
process of naturalization prescribed by Congress. 

On the 24th of June, 1776, the Continental Congress resolved, “ That 
all persons abiding in any of the United Colonies, and deriving protection 
from the laws of the same, owe allegiance to the said laws, and are mem¬ 
bers of such Colony.” The Articles of Confederation, however, left 
jurisdiction over this subject to the individual States. 

The objections to giving each State tbe power to frame 
naturalization laws for itself are obvious. One State might 


i. vm. 4 . 


NATURALIZATION 


97 


confer the rights of citizenship after a residence of one year, 
another after two years, and another after ten; yet the Con¬ 
stitution provides that “ the citizens of each State shall be 
entitled to all privileges and immunities of citizens in the 
several States.” There was no difference of opinion in the 
Convention as to the propriety of giving to Congress the ex¬ 
clusive control of the matter. 

In 1790 Congress passed an act requiring two years’ residence before a 
foreigner could become a citizen. In 1795 the time was extended to five 
years, and in 1798 it was extended to fourteen years. But in 1802 it was 
reduced to five years, which is the time now required. 

Mode of Naturalization,—The mode of naturalization re¬ 
quires, first, that the alien shall make, at least two years 
before his admission—it was three years by the act of 1802, 
but changed to two in 1824—a declaration, on oath, of his 
purpose to become a citizen of the United States, and to 
renounce all allegiance to any foreign prince or state; sec¬ 
ondly, that when he applies for admission he shall sign in 
his own handwriting a petition to the same effect, also giving 
details of residence, names of wife and children (if any), etc.; 
thirdly, that the applicant shall be able to speak English, 
unless he has made a homestead entry on public land; 
fourthly, that he shall declare, on oath, that he will support 
the Constitution of the United States, and doth renounce all 
allegiance to any foreign prince or state; fifthly, that the 
court admitting him shall be satisfied, by the evidence of 
two citizen witnesses and otherwise, at a hearing at least 
ninety days after the filing of his petition, that he has resided 
five years within the United States, and one year in the 
State or Territory where the court is held, and that he has 
behaved as a man of good moral character. 

By naturalization an alien becomes a citizen of the United 
States. He is thereby a citizen of any State where he shall 
reside. 


A. C.—7 


98 


THE CONSTITUTION 


1. Yin. 4. 


The children of persons duly naturalized, being under 
twenty-one at the date of their parents’ naturalization, shall 
be considered citizens, if residing in the United States. 

The children of citizens of the United States shall be con¬ 
sidered citizens, though born abroad. 

If an alien who has made his declaration of intention to 
become a citizen die before he is actually naturalized, his 
widow and minor children may be naturalized by complying 
with the other provisions of the law, without making any 
declaration of intention. 

No alien who shall be a native citizen or subject of any country with 
which the United States shall be at war at the time of his application, shall 
be then admitted to citizenship. 

Soldiers and Sailors.—A soldier of the age of twenty-one years and 
upward, regularly discharged from the army of the United States, may be 
admitted to citizenship without a previous declaration of intention, and 
with a single year’s residence. 

A seaman, having served three years on a merchant ship of the United 
States after making a declaration, may be naturalized. After a declara¬ 
tion, a seaman shall be deemed an American citizen for purposes of pro¬ 
tection. 

An alien of twenty-one years or over who has served five consecutive 
years in the United States Navy or one enlistment in the Marine Corps and 
has been honorably discharged, shall be admitted to citizenship without a 
previous declaration of intention. 


Expatriation.—The admission to citizenship of those who 
have been subjects of other governments, implies the right of 
expatriation. This right has been denied by some of the 
European states, and the claim maintained that American 
naturalized citizens still owe allegiance to the countries where 
they formerly resided. In July, 1868, an act of Congress 
was passed expressly declaring the right of expatriation, and 
that “All naturalized citizens of the United States, while in 
foreign states, shall be entitled to, and shall receive from this 
government, the same protection of persons and property 


1. VIII. 4. 


NATURALIZATION 


99 


that is accorded to native-born citizens in like situations and 
circumstances.” 

Treaties have been made by the United States with a num¬ 
ber of other nations, in which provision is made for the 
mutual naturalization of citizens, thus recognizing the right 
of expatriation. These treaties provide against the return of 
naturalized foreigners to their original country for residence 
while remaining subjects of the foreign country. A resi¬ 
dence of two years in the original country is held to be the 
renunciation of naturalization in the adopted country. 

Africans and Chinese. —Though the Constitution gives to Congress the 
whole control of the subject of naturalization, with no limitation as to 
those who may be admitted to citizenship, every law enacted, from 1790 
to 1870, restricted it to whites. By act of July 14th, 1870, it was provided 
u That the naturalization laws are hereby extended to aliens of African 
nativity, and to persons of African descent.” As the original statute 
limited naturalization to white aliens, and the act of 1870 extended it to 
those of African descent, the question has arisen whether the Chinese 
may be naturalized. This was decided differently by different courts ; 
some holding that the Chinese are white, others that they are not. In 
1882 a law was passed declaring that no court should admit Chinese to citi¬ 
zenship. This act of 1882 also suspended for ten years the immigration of 
Chinese laborers to the United States, and was followed by a series of enact¬ 
ments excluding Chinese laborers from entering this country. These 
laws except from their operation Chinese merchants, travelers, diplomatic 
representatives, and students. No Chinese laborer who was not in this 
country in 1892 can lawfully be here now. 

Congress and Suffrage. —Mr. Curtis, in his History of the 
Constitution, says, “ The power that was given, by unanimous 
consent, over the subject of naturalization, shows the strong 
purpose that was entertained of vesting in the national au¬ 
thority an efficient practical control over the States in respect 
to the political rights to be conceded to persons not natives 
of the country.” In a note he says : “1 have called the nat¬ 
uralization power a practical control upon the States in the 
matter of suffrage. It is indirect, but it is effectual; for I 


100 


THE CONSTITUTION 


i. vni. 4 . 


believe that no State has ever gone so far as, by express stat¬ 
utory or constitutional provision, to admit to the right of 
voting persons of foreign birth who are not naturalized citizens 
of the United States." 1 Mr. Curtis is, doubtless, right in his 
opinion that an alien ought not to be allowed to vote ; but he 
is wrong in the statement that no State has extended the 
right of voting to persons of foreign birth not naturalized. 
In about a fifth of the States this right is enjoyed. The 
constitution of Indiana, for instance, permits an alien to vote 
who has been one year in the United States and six months 
in Indiana, and who has declared his purpose to become a 
citizen of the United States. The constitutions of Illinois 
and Ohio, however, restrict suffrage to citizens of the United 
States. 

Aliens and Real Estate.—By the common law, an alien could not hold 
real estate; and in some of the States a special act of the legislature is 
necessary to enable an alien to hold such property. But other States 
have provided by statute that no difference in this respect shall exist be¬ 
tween an alien and a citizen. 

Naturalization removes the disabilities of alienage, and 
confers, with one or two exceptions, all the rights and priv¬ 
ileges pertaining to the native-born citizen. A naturalized 
citizen can not hold the office of President or Vice President 
of the United States, nor can he be a representative or senator 
in Congress till he has been a citizen for a term of years. 

Naturalization of Communities.—While this clause of the * 
Constitution authorizes Congress to “ establish a uniform 
rule of naturalization," and such a rule has been established, 
Congress has exercised the power of granting naturalization 
without regard to the rule. Foreign territory has repeatedly 
been incorporated into the Union by treaty and otherwise, 
and the inhabitants, of whatever race or description, clothed 
with the rights of citizenship. The President and Senate 

1 History of the Constitution, II.. page 202. 


i. vm. 4. 


BANKRUPTCY 


101 


have thus naturalized whole communities, without reference 
to the sections of the act prescribing the mode of naturaliza¬ 
tion. So Texas, with all its people, was admitted into the 
Union by joint resolution of Congress. As the general gov¬ 
ernment has thus naturalized whole masses of people without 
any specific authority, the grant to establish a uniform rule 
has not been considered as exhausting the power of Congress 
'over the subject. 

In 1870 Congress passed a stringent law to punish crimes 
against the naturalization laws. Great frauds had been com¬ 
mitted in some of the cities in the issue of naturalization 
papers, thus leading to the casting of many fraudulent votes. 

Bankruptcy.—In English law a bankrupt was a trader who 
had committed an act of bankruptcy. The term “traders” 
included merchants and other persons engaged in trade, but 
not bankers, farmers, gentlemen, etc. A great many actions 
by a trader were declared to be acts of bankruptcy, such as 
fraudulent conveying of property, concealing property to 
avoid or obstruct the collection of debts, concealing one’s self 
or leaving home for the purpose of avoiding one’s creditors or 
the service of legal process. Insolvency is the condition of 
an excess of one’s liabilities over his assets. In English law 
anybody could become insolvent but only traders could 
become bankrupt. Naturally insolvency usually preceded 
and coexisted with bankruptcy, but either might exist with¬ 
out the other, even among traders. A solvent trader might 
be adjudged to have committed an act of bankruptcy, while 
many insolvent traders never committed such acts. 

State Insolvency Laws.—In popular usage in the United 
States bankrupt and insolvent are synonymous terms, but 
their legal significations differ. A bankruptcy law is a law 
discharging a debtor of existing contracts and obligations. 
The details of procedure and the conditions upon which debts 
are annulled vary in different statutes, but every bankruptcy 
law provides for the liquidation of otherwise binding con 


102 


THE CONSTITUTION 


1. VHI. 4. 


tracts. Insolvency laws are laws passed by States regulat¬ 
ing the manner of proceeding against unfortunate debtors. 
Such laws can not affect citizens of other States. They can 
not impair any substantial right based on an existing contract 
or obligation, but they may change the mode of procedure for 
enforcing the contract, as by releasing a debtor from impris¬ 
onment. They may also regulate the manner of enforcing 
contracts made, or of collecting debts incurred, after the pas-', 
sage of the act. It is not always easy to determine whether 
an insolvency law does or does not impair the substantial 
rights of a creditor under a contract. 

Before the adoption of the Constitution of the United 
States, the States passed bankruptcy laws, but the clause 
under consideration transferred this power to Congress and 
required such laws to be uniform throughout the United 
States. 

In only the first of the bankruptcy acts passed by Congress has the 
English distinction been made between traders and other persons. The 
second act, passed in 1841, the third in 1867, and the fourth in 1898 apply 
to all persons alike owing debts. Each of these statutes also provides for 
voluntary bankruptcy. The first three were in force only about sixteen 
years. 

The Bankruptcy Law of 1898 .—Under the law of 1898, 
any person, except a corporation, who owes debts, may 
become a voluntary bankrupt by filing his petition in a 
United States District Court, asking to be so adjudged. Any 
person except a corporation, wage earner, or farmer may be 
adjudged an involuntary bankrupt for committing any of the 
following acts of bankruptcy : conveying, concealing, or re¬ 
moving any part of his property with intent to defraud or 
delay any of his creditors, giving any of his creditors a prefer¬ 
ence over the rest by conveying to them while insolvent any 
of his property or by permitting them to take legal action by 
which they acquire such preferences, making a general assign¬ 
ment of his assets for the benefit of his creditors, and admit- 


1. VIII. 4. 


BANKRUPTCY 


103 


ting in writing inability to pay his debts and willingness to 
be adjudged a bankrupt. This act gives the District Court 
of the United States jurisdiction over the subject of bank¬ 
ruptcy. The administration of the bankrupt's estate is 
carried out by a trustee who acts like an executor of the 
estate of a deceased person. The act also provides for ref¬ 
erees, who are empowered to consider and pass upon all peti¬ 
tions, take testimony, and exercise certain general judicial 
powers. A referee's decision is always subject to review by 
the court. 

Object of a Bankrupt Law—A bankrupt law is intended 
for the benefit of both creditors and debtors. It benefits the 
creditors by securing among them an equitable distribution 
of the property of the debtor. It benefits the debtor by 
releasing him from hopeless insolvency, and giving him an 
opportunity again to engage in business. The bankrupt, 
after the various requirements of the law have been complied 
with, receives a “ discharge " from his debts. 

Bankruptcy in Europe. —It is to be feared that debtors, in our country, 
are released too easily from their obligations. 44 In England, bankruptcy 
is a more serious matter. The bankrupt not only loses credit; he also, 
to a great extent, loses caste. ... In France, the lot of the bank¬ 
rupt is still more severe; not only does he lose his social position, but the 
law prevents him from engaging in any other business ou his own account 
till he has redeemed his outstanding obligations.” 1 

Language of Mr. Mill.—But even the British laws are far too lenient, 
according to the opinion of an eminent writer. 44 It is seldom difficult 
.for a dishonest debtor, by an understanding with one or more of his 
creditors, or by means of pretended creditors set up for the purpose, to 
abstract a part, perhaps the greatest part, of his assets from the general 
fund through the forms of the law itself. ... To have been trusted 
with money or money’s worth, and to have lost or spent it, is prima facie 
evidence of something wrong, and it is not for the creditor to prove, which 
he can not do in one case out of ten, that there has been criminality, but 
for the debtor to rebut the presumption by laying open the whole state 


1 Bowen’s American Political Economy, page 211. 


104 


THE CONSTITUTION 


1. VIII. 6. 


of his affairs, and showing either that there has been no misconduct, or 
that the misconduct has been of an excusable kind.” 1 

The distinction between a legal obligation and a moral one 
must not be overlooked. The law may discharge the bank¬ 
rupt from his debts, but there still rests upon him the moral 
obligation to satisfy the claims of his creditors, so far as it 
may be in his power. The legal discharge puts him in a posi¬ 
tion to accumulate again, and thus furnishes him the oppor¬ 
tunity to provide the means with which to pay his debts in 
whole or in part. Some make this right use of the advantage 
which the law gives them, but many regard the legal discharge 
from their debts as a release, also, from their moral obliga¬ 
tions. Bankruptcy is a test, though a severe one, of a man’s 
real character. 

Clause 5 -—To coin money, regulate the value thereof, and 
of foreign coin, and fix the standard of weights and measures ; 

What is Money ?—To Congress is here given the power to 
coin money. Elsewhere in the Constitution (Art. I., Sec. 10, 
Clause 1) the States are forbidden to “coin money,” or 
“ make anything but gold and silver coin a tender in payment 
of debts.” According to the Constitution, then, money is 
gold or silver, coined by the general government, and made a 
tender in payment of debts. Whatever fails to possess these 
three characteristics is not strictly money. A promise to pay, 
whether by the government or a bank, though the law may 
make it legal tender, is not money, but only a promise to pay 
money. Gold as bullion,—that is, in any form but that of 
coin—is not money, though it may have the value of the same 
weight of gold coin. 

The Spanish Dollar the Unit.—Under the Articles of Confederation, 
the power of coining money was possessed by Congress and the States 
jointly, though Congress had “the sole and exclusive right and power of 

1 Mill’s Political Economy , II., pages 473, 476. 


i. vm. a. 


THE POWER TO COIN MONEY 


105 


regulating the alloy and value of coin struck by their own authority, or by 
that of the respective States.” The power had not been exercised either 
by Congress or the States prior to the Constitution. Coin of other coun¬ 
tries was used, the Continental Congress regarding the Spanish dollar, or 
4 piece of eight,” as the money unit. There was no official action on the 
subject till 1785, when Congress resolved that the dollar should be the 
money unit, and that the decimal system should be followed. A year later 
the dollar was defined by prescribing its weight in grains in each metal. 
But no coins were issued of either gold or silver. 

The Coinage Act of 1792. —The first act of Congress under 
this clause was the coinage act of 1792. This prescribed what 
coins should be issued of gold, of silver, and of copper, and 
their respective weights. It provided also for coinage by the 
establishment of a mint at Philadelphia, where Congress was 
then in session. This has never been removed, though Wash¬ 
ington became the seat of government in 1800. Branch mints 
have since been established in various places. 

Both Gold and Silver Coins Legal Tender. —The coinage 
act of 1792 made both gold and silver coin legal tender for all 
sums. In the gold coins, which at first were three, the eagle 
(ten dollars), the half-eagle, and the quarter-eagle, there were 
21J grains (Troy) of pure gold to the dollar. In the silver 
coins, which were the dollar, the half-dollar, the quarter, the 
dime (“ disme” in the statute), and the half-dime, there were 
371J grains of pure silver to the dollar. The silver coins con¬ 
tained just fifteen times as many grains of pure metal as the 
gold coins of the same amount, showing that in the judgment 
of Congress an ounce of gold was worth at that time in the 
markets of the world fifteen times as much as an ounce of sil¬ 
ver. As debts might be paid in either gold or silver at the 
option of the payer, it was necessary that the two classes of 
coin should have, so far as possible, the same value. 

To “ Regulate the Value ” is to Fix the Ratio. —Congress 
has power to “ regulate the value of money.” Were our 
money restricted to one metal, there would be no occasion for 
the exercise of this power. With gold as the only money, for 


106 


THE CONSTITUTION 


1. VTH. 6. 


example, Congress would simply determine the number of 
grains the dollar should contain, but could do nothing to reg¬ 
ulate or determine its value, or purchasing power. When, 
however, two metals are to be used as money, Congress must 
prescribe their respective weights ; and in this sense, but in 
no other, can it “ regulate the value ” of money. This was all 
that was done in 1792. The weight of the gold dollar having 
first been decided on, that of the silver dollar must be made 
to correspond ; that is, the ratio of the commercial values of 
the two metals must be preserved. To prescribe arbitrarily 
the relative weights would be monstrous; for, as Jefferson 
says, “ the proportion between the values of gold and silver is 
a mercantile problem altogether.” 

The Relative Value of Gold Increases. —After a few years 
gold began to increase in value relatively to silver, so that an 
ounce of gold was worth more than fifteen ounces of silver. 
In consequence, the gold coins began to disappear from cir¬ 
culation, being melted up or exported. To keep both metals 
in circulation as money it was necessary either to put less gold 
into the gold coins or more silver into the silver ones. The 
former method, which was the only just one, was adopted. 

If gold had been the single standard, or the standard, the silver should 
have been made to correspond to it, and so the silver dollar increased in 
weight. But both metals being by law full legal tender were equal stand¬ 
ards ; when, therefore, the gold ceased to circulate, the silver became 
practically the single standard, and all contracts were made with reference 
to that. To have made a heavier silver dollar would have been unjust to 
all who had money to pay. To make a lighter gold dollar was strictly 
just to all. 

Gold Coins Reduced in 1834*— This change was brought 
about in 1834. The gold coins were reduced from 24J grains 
of pure gold to the dollar to 23£ grains. As the number of 
grains of pure silver in the silver dollar remained 371J as 
before, the ratio between the two metals was changed from 
15 to 1 to that of 16 to L 


i. vm. 5 . 


AMERICAN COIN 


107 


The Relative Value of Silver Increases.— But presently 
the equilibrium was again disturbed, silver having become 
worth more than the one sixteenth part of gold. This was 
owing, in part at least, to the large amount of gold from the 
Australian and Californian mines. If both gold and silver 
were to be retained as full legal tender, the silver coins must 
be reduced in weight as those of gold were in 1834. There 
was another method, however,—to make gold alone the legal 
standard, and have the silver coins subsidiary. This method 
was preferred by the government; and in 1851 the Secretary 
of the Treasury recommended that the silver coins be reduced 
in weight, and be made legal tender for small sums only. 

Silver Coin made Subsidiary in 1853 _A bill was accord¬ 

ingly prepared which became a law February 21st, 1853, pro¬ 
viding that two half-dollars, four quarters, etc., should con¬ 
tain 345.6 grains of pure silver instead of 37l£; and that 
these coins should be a legal tender for only five dollars. 
The silver dollar was not mentioned in the act, and so 
remained as a nominal coin, but it formed from that time no 
part of the circulating money of the country. In this great 
monetary change the United States followed the example of 
Great Britain, where gold was adopted as the only standard in 
1816, silver being made a legal tender for only forty shillings. 

The Act of 1873. —Silver was thus practically demonetized 
in 1853, and from that time was used only as change, or 
token money. In 1873 a general coinage act was passed, 
which prohibited the coining of any coins not mentioned in 
the act. As the silver dollar was not named in the list, this 
legislation completed the demonetization of silver. The act 
also declared that the gold dollar should “ be the unit of 
value.” 

Free Coinage of Gold but not of Silver. —Until 1853 there 
was free coinage of both gold and silver ; that is, any owner 
of bullion could take it to the mint and have it coined for 
him, receiving in coin the full weight of the bullion. The 


108 


THE CONSTITUTION 


i. vm. e. 


same is true still as to gold, but not as to silver. The govern¬ 
ment coins no gold for itself, but for the owners of bullion. 
But silver, whose metallic or commercial value is now much 
below its nominal value, is coined exclusively for the gov¬ 
ernment, having been purchased in the open market. 

The Silver Dollar Recoined in 1878.— From 1792 to about 
1875 the ratio of the metallic values of gold and silver ranged 
between fifteen and sixteen to one. Silver then began to 
decline in relative value, so that in July, 1876, the silver in 
the old dollar of 371J grains pure was worth only 79J cents. 
There were also great fluctuations in its value, the variation 
amounting to twenty-five per cent within a period of five 
months. About this time the question of recoining the 
silver dollar, and making it again full legal tender, began to 
be agitated, and by the act of February 28th, 1878, this was 
done. The bill,—which declared that a silver piece then 
worth 93 cents should pass for a dollar—was vetoed by Presi¬ 
dent Hayes, but was subsequently passed by the requisite 
majority in each house. 1 

Silver Dollars Virtually Subsidiary.—The act of 1878 required the 
purchase and coining of not less than two million nor more than four 
million dollars’ worth of silver bullion a month. This bill, as it passed 
the House, provided for the free coinage of silver; it was called the 
Bland bill. But the Senate, under the lead of Mr. Allison, struck out 
that provision. The silver dollar coins, though full legal tender, were 
not placed on an equality with gold coins. The declaration of the act of 
1873, that the gold dollar is u the unit of value,” was not changed by the 
act of 1878. The silver dollars coined are virtually subsidiary, having 
been coined like the smaller coins from bullion purchased by the govern¬ 
ment. and being kept in circulation at more than their bullion value by 
the fact that they are practically redeemable in gold, which is the real 
money of the country. 

1 It was asserted that the decline in the commercial value of silver was owing largely 
to the omission of the dollar from the silver coins in 1873 ; and it was pred cted that its 
restoration would soon bring back the value of silver to an equality with co d. The 
prediction has not been fu filled. On the contrary, the silver dollar worth about 93 cents 
in 1878 has since fallen below 46. 


i. vm. 5. 


AMERICAN COIN 


109 


The Sherman Act. —In 1890 Congress passed the Sherman 
Act. This law required the Secretary of the Treasury to buy 
four and a half million ounces of silver each month, paying 
for it with treasury notes redeemable in gold or silver at the 
option of the Secretary of the Treasury. The law contained 
a clause stating it to be *‘the established policy of the United 
States to maintain the two metals on a parity with each other 
at the present ratio” (16 to 1). The coining of silver dollars 
was to continue at the rate of 2,000,000 ounces per month until 
July 1st, 1891, the bullion purchased and not coined being 
stored in the treasury. The silver dollars coined under the 
Sherman Act are, like those coined under the Bland-Allison 
Act, practically subsidiary currency. 

By an act of 1882 Congress bad recognized a reserve fund of gold of 
the sum of $100,000,000 and over, previously fixed upon and set apart by 
John Sherman when he was Secretary of the Treasury, for the redemption 
of United States notes (greenbacks). The treasury notes were presented 
in great quantities in 1893 and were paid by the Treasury Department in 
gold. The gold thus drawn from the treasury was exported. To such an 
extent was the treasury depleted by these exportations that the $100,000,000 
fund reserved for the payment of the greenbacks was encroached upon 
and diminished. This condition of affairs was followed by a period of 
great distrust, in financial circles, of the ability of the United States to 
maintain indefinitely the parity of gold and silver at the ratio of 16 to l 
by this process of redeeming its paper in gold. It. was seen that as long 
as the Treasury Department was obliged to buy silver and pay for it in 
treasury notes the government must redeem the notes in gold in order to 
maintain the parity of the two metals; because silver, being cheaper, 
would not be accepted by holders of the notes. It was believed that the 
only way to end this strain upon the gold resources of the government was 
to cease buying the silver for which the treasury notes were being issued; 
but to do this it was necessary to repeal the purchasing clause of the 
Sherman Act of 1890. A special session of Congress was called for this 
purpose and assembled August 7th, 1893. The bill repealing the purchas¬ 
ing clause of the Act of 1890 passed the House August 21st, but it was 
debated in the Senate until October 30th before a vote was finally secured, 
when it was passed. 

This Senate debate is memorable for its bitterness and 1 ngth and the 


110 


THE CONSTITUTION" 


1. VIII. 5. 


great efforts made by opponents of the measure to prevent a vote being 
taken at all. According to the rules under which the Senate has always 
deliberated, a vote can not be taken on a proposed measure so long as any 
senator is ready and wishes to speak on it. The right of debate is unlim¬ 
ited. Under this rule the senators opposed to the repeal made voluminous 
speeches. Senator Allen of Nebraska by speaking continuously fourteen 
hours once destroyed an effort made by the advocates of repeal to prolong 
a single session until the opposing senators would from sheer physical ex¬ 
haustion be forced to permit a ballot to be taken. 

The passage of the Act of 1893 merely stopped the compul¬ 
sory monthly purchase of silver. 

Under the Sherman Act and before its repeal 168,000,000 ounces of 
silver were bought and $155,931,000 in treasury notes were issued for it; 
and of this silver $36,087,285 were coined. On October 31, 1911, the 
amount of treasury notes outstanding was $3,138,000. 

Later Coinage of Silver. —By act of Congress, 1898, the 
Secretary of the Treasury was directed to coin the silver bul¬ 
lion purchased under the Sherman Act “ into standard silver 
dollars as rapidly as the public interests may require, to an 
amount, however, of not less than one and one-half millions 
of dollars in each month.” By the Finance Act of 1900 the 
dollars so coined are to be used in redeeming treasury notes, 
which are then retired and cancelled. Upon the cancellation 
of the treasury notes silver certificates are to be issued against 
the silver dollars so coined. 

The Trade Dollar.—The change in silver in 1853, as appears from the 
report of the Secretary of the Treasury and from the discussions in Con¬ 
gress, was for the purpose of making gold the single standard. As the 
dollar coin remained on the statute-book, repeatedly between 1853 and 
1873 the financial officers of the government urged Congress to drop that 
coin or reduce its weight to that of two half-dollars. When, in accord¬ 
ance with these recommendations it was dropped in 1873, the “ trade dol¬ 
lar,” a silver coin a trifle heavier than the old dollar, was provided for 
trade with China. This was a legal tender at first, but not after 1876 It 
was an instance of a coin which was not money , not even token money. 
Early in 1887 Congress authorized standard silver dollars to be given in 
exchange for the trade dollars. 


i. vm. 5. 


AMERICAN COIN 


111 


Alloy of Coins One Tenth —All our gold and silver coins 
contain one tenth of alloy, and are thus said to be nine tenths 
fine. The value of the coin depends entirely upon the pure 
metal which, it contains, though the weight usually given is 
the standard w r eight, i.e., the weight of both pure metal and 
alloy. Thus, the gold dollar has 25.8 grains of standard and 
23.22 grains of pure gold ; and the silver dollar has 412- 1 
grains of standard and 371J grains of pure silver. The silver 
coins less than a dollar have 385.8 grains (or 25 grams) of 
standard silver to the dollar. Prior to 1837 the alloy of our 
gold coins was one twelfth, and that of the silver coins a little 
more than one tenth. 1 

Subsidiary Coins. —All our gold coins and the silver dol¬ 
lar are legal tender for all sums ; the smaller silver coins are 
legal tender for small sums only, and are hence called subsid¬ 
iary coins. From 1853 to 1879 they were legal tender for 
$5.00 ; since 1879, for $10.00. These smaller coins, whose 
nominal value is much greater than their real, are redeema¬ 
ble when presented in sums of $20.00 and upwards, and thus 
are kept in circulation. The nickel and copper pieces called 
“ minor coins,” are legal tender for twenty-five cents. By act 
of 1900 the subsidiary silver is limited to $100,000,000 in 
the aggregate. 

Gold and Silver Certificates. —Gold coin and bullion may, 
by the law of 1863, be deposited in the treasury, and certifi¬ 
cates of deposit in sums of not less than $20.00 be received in 
exchange. In 1878 silver certificates were authorized in like 
manner for $10.00 and upwards in exchange for silver dollars. 
By act of 1886 silver certificates may be issued for one, two, 
and five dollars. These certificates are not legal tender, but 
are received for all government dues. By the Act of 1900 
the Secretary of the Treasury is authorized to issue gold cer- 

1 The alloy of French coins is one tenth for gold and silver, except that the subsidiary 
silver coins are 1 %% fine. The alloy of British gold is one twelfth, and that of silver three 
fortieths. 


112 


THE CONSTITUTION 


1. VIH. 5. 


tificates of $20 (changed to $10 in 190?) and upwards in 
exchange for deposits of gold coin, and the com so received 
shall be held in the treasury for payment of such certificates 
on demand. If the gold in the reserve fund falls below 
$100,000,000 the issue of certificates shall be suspended, and 
the secretary is authorized to suspend the issue whenever the 
aggregate amount of United States notes and silver certifi¬ 
cates in the general fund of the treasury exceeds $00,000,000. 

' One fourth of the outstanding certificates must bo of the de¬ 
nomination of $50 or less, and certificates payable to order of 
the denomination of $10,000 may be issued. Provision is 
made that ninety per cent in value of the silver certificates 
issued shall be in denominations of ten dollars and under. 

Foreign Coin. —The value of foreign coin is “ regulated" 
by establishing the rates at which it shall be received for 
duties on goods imported and in payment for public lands 
sold. Such rates were established in 1789, and have been 
modified from time to time to correspond with the changes 
in the coin of different nations. The rates depend on the 
metallic value of the foreign coin. Thus the sovereign, or 
pound sterling, of Great Britain, is taken at $4.86^^, because 
that is the exact value (expressed in American coin) of the 
gold it contains. Of course. Congress does not attempt to 
regulate the value of foreign silver coin. No such coin has 
been taken as money by our government for a long time. 
The commerce of the world is carried on wholly in gold. 

No Foreign Coin Legal Tender Now —Between 1793 and 
1857 the coin of various countries was legal tender, though 
from 1819 to 1834 this was true only of silver. Since 1857 
no foreign coin has been a legal tender. The smaller Spanish 
coins—the quarters, eighths, and sixteenths of the Spanish 
dollar—formed a large part of the silver change of the coun¬ 
try till 1857, though our American quarters, dimes, and half¬ 
dimes were issued as early as 1794. In that year the Spanish 
coins were ordered to be taken at the treasury and at the 


L VIII. a. 


TREASURY NOTES 


112 


post office at only twenty, ten, and five cents respectively. 
They were not paid out, but recoined into American money. 

Treasury Notes.—Under Clause 2 of Section 8 , which 
authorizes Congress to borrow money, we have spoken of the 
issues of treasury notes. Such notes have been repeatedly 
issued by the general government, the notes being of various 
denominations, generally redeemable in a year or other short 
period, though sometimes with the time of redemption left 
indefinite. Generally they have borne interest, but not 
always. They have been receivable by the United States for 
all taxes and duties, and for public lands, and have been paid 
out to such creditors as were willing to receive them at par. 
In most cases they have been made payable to order, and 
have been transferable by delivery and indorsement, though 
some have been made payable to bearer and have been trans- 
ferable by delivery. 

Bills of Credit.—These treasury notes are what the Con* 
stitution calls “ bills of credit.” The States are forbidden to 
“ emit bills of credit,” as well as to “ coin money,” and to 
“ make anything but gold and silver coin a tender in payment 
of debts.” The Constitution places the coining of money 
among the powers of Congress, but says nothing in regard to 
their issuing bills of credit. In the draft of the Constitution, 
as reported by the Committee of Detail, Congress was author¬ 
ized to “ borrow money and emit bills on the credit of the 
United States.” But the latter part was stricken out by a 
vote of nine States to two . 1 

Treasury Notes not Legal Tender till 1862 —Bills of credit 
were issued by the Continental Congress, but they were not 
made a legal tender, though this had been done by some of 
the States. Under the Constitution, no treasury notes were 
made legal tender till 1862. The act of February 25th of 
that year provided for the issue of notes to be “ lawful money 
and a legal tender in payment of all debts, public and pri- 

> Elliot, I., page 243. 


4. C.-e 


THE CONSTITUTION 


1 VIII. 5. 


114 


vate, except duties on imports and interest on the bonds and 
notes of the United States.” Great opposition was made to 
the legal tender feature of the bill, and it was acquiesced in 
only on the ground of extreme necessity. A redeeming fea¬ 
ture of the law was the provision for the conversion of these 
notes into bonds bearing interest and payable in coin. Most 
unfortunately, this provision was repealed the next year. 

Opinion of Mr. Madison and of Mr. Bancroft. —The con¬ 
stitutionality of the law has been sustained by the Supreme 
Court, though many believe that the framers of the Constitu¬ 
tion intended to put the issuing of legal tender notes beyond 
the power of Congress. Mr. Madison says the Convention 
had “cut off the pretext for a paper currency , and particu¬ 
larly for making the bills a tender , either for public or pri¬ 
vate debts.” 1 Says Mr. Bancroft, “Our federal Constitu¬ 
tion was designed to end forever the emission of bills of 
credit as legal tender in payment of debts, alike by the indi¬ 
vidual States and the United States.” 2 

History of the Legal Tender Notes. —The treasury notes 
issued under the act of 1862, known as “ legal tenders,” and 
“ greenbacks,” which bear no interest and have no specified 
time of payment, soon began to decline in value, being worth 
in July, 1864, only thirty-five cents to the dollar in gold. In 
the autumn of 1865 the value had risen to seventy cents.^ 
“ An act to strengthen the public credit ” was passed in 
March, 1869, in which “the United States solemnly pledges 
its faith to make provision at the earliest practicable period 
for the redemption of these notes in coin.” Six years later, 
in January, 1875, Congress passed an act that the legal ten¬ 
der notes should be redeemed in coin on and after the 1st of 
January, 1879. Since that day these notes, which had been 
irredeemable for nearly seventeen years, have been paid in 
gold on demand. One thing more was necessary—that the 
notes, as they were redeemed, should be cancelled. But the 

1 Elliot, V., page 435. 2 Bancroft’s Plea for the Constitution, page 5. 


i. vm. 5. 


TREASURY NOTES 


115 


Congress of 1878, after restoring the silver dollar (in Febru¬ 
ary), enacted (in May) that the legal tender notes, when re¬ 
deemed, should not be destroyed but reissued. 

The Secretary of the Treasury, in his Report for 1885, speaks of this 
act as “ postponing indefinitely the fulfillment of the solemn pledge 
(made in 1869) not only of redemption, but also of payment of all the 
obligations of the United States not bearing interest.” The amount of 
United States notes thus unpaid is $346,681,016. There is in circulation, 
besides this, a varying amount of the legal tender treasury notes issued 
under the provisions of the Sherman Act of 1890. 

Legal Tender Notes are Promises Only —There are those 
who seem to think that a legal tender note is really money, as 
much as a gold or silver coin. It passes current, it pays 
debts ; why is it not money ? The stamp of the government, 
they think, gives it value, and therefore it makes no differ¬ 
ence of what material it is made. “ Whether the coin shall 
be. metal, leather, parchment, paper, or any other substance, 
is a question of expediency,” it is said. The government, 
however, does not profess to have this power of making some¬ 
thing out of nothing. Congress and the President know that 
these notes are simply evidences of debt due by the United 
States to the holders of them. Every such note is a promise 
to pay by the government. It is like a promissory note given 
by a private citizen, or a note issued by a bank. The differ¬ 
ence is that a banknote is a promise to pay on demand, and 
1 the note of a person is a promise to pay on demand or at a 
specified time ; while on the government note the time is 
indefinite. 

Difference Between Gold and Greenbacks —A gold eagle 
has upon it the stamp of the United States, which is a guar¬ 
anty that it contains so many grains of pure gold. It bears 
its value upon its face,—ten dollars. But a legal tender note 
does not purport to be ten dollars ; it is a mere certificate of 
indebtedness for that amount on the part of the government 


116 


THE CONSTITUTION 


i. vm. «, 


to the holder of the note. “The United States will pay the 
bearer ten dollars.” If this piece of paper were itself ten dol¬ 
lars, there would be no subsequent transaction requisite be¬ 
tween the holder and the government. As between man and 
man it is given and taken as in full satisfaction of debt; but 
he who receives it holds it as a valid debt against the United 
States. When the government pays gold to its creditor, the 
debt is paid. When it pays him legal tender notes, it gives 
him a certificate of indebtedness which he may transfer to 
another. If the treasury notes in the hands of the people 
were veritable money, as truly so as gold, then the United 
States would not be indebted to those who hold them 
any more than it is to those who have gold eagles in their pos¬ 
session ; and the Treasury Department would not report these 
treasury notes as a part of the national debt. 

Bank Currency. —In authorizing Congress to “ borrow 
money,” as well as “ coin money and regulate the value there¬ 
of,” and in prohibiting the States from coining money and 
emitting bills of credit, the Constitution places in Congress 
the control of the*whole subject of money ; not only of gold 
and silver coin, but of all substitutes for them. This control, 
however, so far as it relates to the banknote currency 
of the country, Congress has not always exercised. 1 A 
bank of the United States was chartered February 25th, 
1791, as a fiscal agent of the government, with a capital of 
ten millions, and to continue twenty years. On the 10th of 
April, 1816, another was chartered, with a capital of thirty- 
five millions, to continue for twenty years. Congress refused 
to recharter the first, and President Jackson vetoed the bill 
to renew the charter of the second. In 1841 two bills in 
succession were passed to establish a United States bank, but 
both were vetoed by President Tyler. Congress also author¬ 
ized the establishment of banks in the District of Columbia. 

1 The Bank of North America at Philadelphia, chartered by the Continental Congress 
in December, 1781, was the first bank organized in the United States. 


i. vin. 5. 


BANKNOTES 


117 


Banks and the States. —With these exceptions, the char¬ 
ters of the banks of the country, until 1863, were granted by 
the several State legislatures. So familiar had the people be¬ 
come with the currency furnished by these State banks, that 
when Congress passed, February 25th, 1863, the act to estab¬ 
lish national banks, many supposed that the general govern¬ 
ment was usurping an authority which belonged to the States. 
On the contrary, we are forced to inquire where the States 
obtained the power to charter banks and thus provide the 
paper circulation of the country. “ Is not the right/'' says Mr. 
Webster, “ of issuing paper intended for circulation in the 
place, and as the representative of metallic currency, de¬ 
rived merely from the power of coining and regulating the 
metallic currency ? Could Congress, if it did not possess the 
power of coining money and regulating the value of foreign 
coins, create a bank with power to circulate bills ? It would 
be difficult to make it out. Where, then, do the States, 
to whom all control over metallic currency is altogether pro¬ 
hibited, obtain this power? ” The States established banks 
of issue because Congress tacitly left it to them in great meas¬ 
ure. The authority was in the general government; but, as 
Congress did not choose to exercise it, the State legislatures 
undertook the work. 

National Banks. —The act of June 3d, 1864, a substitute 
for that of February 25th, 1863, provides for a bureau of 
currency in the Treasury Department, at the head of which 
is a comptroller. Banking associations may be formed with 
power to issue bills, receive deposits, loan money, and per¬ 
form the ordinary functions of banks. By an act of March, 

1865, amended in July, 1866, a tax of ten per cent was levied 
on the circulation of the notes of State banks after August 1, 

1866. This excluded these notes from circulation, and from 
that time until 1913 the bank currency of the country con¬ 
sisted solely of the notes of national banks. 

The circulation was at first limited to $354,000,000 and was 


118 


THE CONSTITUTION 


1. VIII. 5. 


distributed among the States and Territories according to 
wealth and population jointly; but both these provisions have 
been repealed, thus making banking free. The banknotes 
issued are secured by a deposit of United States bonds in the 
treasury, and the circulation of a bank can not exceed the par 
value of the bonds on deposit. 

Advantages of National Banknotes. —The advantages of 
this national banknote currency are (a) that the payment of 
the notes is guaranteed by the United States, so that no 
billholder can suffer loss; ( b ) that each bank must receive 
in payment the notes of all other banks; (c) that the notes 
are receivable for all dues to the United States except for 
duties on imports. The currency is thus made uniform over 
the whole country; a bill on a Texas bank passing as readily 
in the city of New York as one on a New York bank. As a 
banking system, aside from the security of the circulation, it 
has special safeguards, particularly in making every bank sub¬ 
ject to frequent examination by a government examiner. 

Federal Reserve Banks. —In 1913 Congress passed an act 
creating the Federal Reserve System. The whole country was 
divided into twelve districts in each of which one Federal Re¬ 
serve Bank was located. All the national banks were required 
by law to become stockholders of a Federal Reserve Bank, and 
other banks may do so. At the head of the system is a Fed¬ 
eral Reserve Board, which consists of the secretary of the 
treasury, comptroller of the currency, and five other members 
appointed by the President. The Federal Reserve Banks re¬ 
ceive deposits from other banks and make loans to them. 
They also issue federal reserve notes to be circulated as money. 
These are banknotes secured by the deposit of notes, drafts, 
and other commercial paper. 

Weights and Measures. —There is propriety in connecting 
weights and measures with money. By money we express 
the prices, or relative values, of all commodities, and by 
weights and measures we ascertain the quantities of commodi- 


1. VIII. 6. 


WEIGHTS AH"D MEASURES 


119 


ties. As we need uniformity in money, so we need it in all 
measures of quantity. Moreover, the value of all money 
(gold and silver) is measured by its weight. Both subjects, 
therefore, were committed to Congress. 

The importance of uniformity was urged by President 
Washington in his message to the first Congress ; and various 
reports on the subject have been presented at different times. 
A very elaborate one was prepared by John Quincy Adams 
when Secretary of State, in 1821, but the recommendations 
were never embodied in a statute. 

The Mint Standard. —By an act of Congress, May 19th, 
1828, the brass troy pound weight, procured by the minister 
of the United States at London, was made the standard troy 
pound of the Mint of the United States. A series of stand¬ 
ard weights corresponding to this was ordered to be made, 
from the hundredth part of a grain to twenty-five pounds. 
In 1836 the Secretary of the Treasury was directed to cause 
a complete set of weights and measures adopted as standards 
to be delivered to the governor of each State, that a uniform 
standard might be established throughout the United States. 

The Metric System was legalized by act of Congress in 
July, 1866 ; and in 1873, 1876, and several later dates, 
appropriations were made for procuring metric standards for 
the States, and for the construction and verification of stand¬ 
ard weights and measures for the customhouses and for the 
several States. In 1875 the United States united with the 
other principal governments of the world to establish a per¬ 
manent international bureau of weights and measures ; and 
from this bureau there were received (in 1889) copies of the 
international standard meter and kilogram. By a ruling of 
the Secretary of the Treasury (in 1893), these are regarded as 
the fundamental standards of length and weight, the yard 
being defined as ff of a meter, and the pound avoirdupois 
as of a kilogram. 

The legalizing of the metric system is a step toward inter- 


120 


THE CONSTITUTION 


i. vin. a 


national uniformity. The advantages of the use of the same 
weights and measures by all civilized nations are many and 
obvious; but it will be exceedingly difficult to change, in 
these respects, the habits of nations fixed by long usage. 

Clause 6 .—To provide for the punishment of counterfeit¬ 
ing the securities and current coin of the United States ; 

Securities.—The right to punish counterfeiting would, 
follow from the right to coin money. By “securities” are 
meant all certificates of indebtedness, such as bonds, treasury 
notes, etc. The word stock, or stocks, is often used to denote 
a debt due by a government on which it pays interest. Thus 
we say that a person holds ten thousand dollars of United 
States securities, or twenty thousand dollars of Ohio stock. 

Punishment for Counterfeiting.—The general government 
punishes the making and also the passing of counterfeit 
money or securities. It is held that the States may also 
punish the passing of counterfeits of United States coin or 
securities. 

Congress has passed laws punishing the making, forging, 
or counterfeiting, and the passing, uttering, or publishing, of 
the coin of the country, the notes of the United States bank, 
the treasury notes, the fractional currency, the notes of the 
national banks, United States bonds, the excise stamps used 
for internal revenue, letters patent, postage stamps, stamped 
envelopes, postal money orders, and customhouse certificates; 
also the notes, bonds, etc., of foreign governments. 

Making or passing counterfeit coin is punished by fine not 
exceeding $5,000, and imprisonment not exceeding ten years. 
In the case of bonds, notes, etc., the imprisonment may be 
fifteen years. 

Clause 7 -—To establish post offices and post roads ; 

Postal Matters under the Continental Congress_A post 

office department was established before the Declaration of 


1. VTIL 7. 


POST OFFICES 


121 


Independence. In July, 1775, the Continental Congress 
made provision for such a department, and Dr. Benjamin 
Franklin was placed at the head of it, with the title of “ Post¬ 
master-General of the United Colonies.” The Articles of 
Confederation gave Congress “ the sole and exclusive right 
and power of establishing and regulating post offices from one 
State to another throughout all the United States, and ex¬ 
acting such postage on the papers passing through the same 
as may be requisite to defray the expenses of the said office.” 

“ By the authority of two short words, ‘ establish post-offices,’ the gov¬ 
ernment have instituted an establishment employing more men, control¬ 
ling more patronage, and collecting and disbursing more revenue than 
sufficed, within a few years past, for the administration of the whole gov¬ 
ernment.” 1 In 1790 there were seventy-five post offices in the United 
States, and the expenditure for that year was $32,140. In 1916 there 
were about 56,000 post offices, the expenditures were $298,546,026, and 
the receipts were $287,248,166. 

Post Office Department.—The Post Office Department is 
under a Postmaster-General and four Assistant Postmasters- 
General. Postmasters whose compensation is less than one 
thousand dollars are appointed by the Postmaster-General, and 
may be removed by him. In all other cases the appointment, 
which is for four years, is made by nomination of the Presi¬ 
dent and confirmation by the Senate. Postmasters of this 
class, which numbers over four thousand, are paid salaries, as 
are also the clerks, assistants, etc., in large offices. The other 
postmasters (those who receive less than $1,000) are paid by 
the rents from boxes, and a commission on other office receipts 
and upon the stamps cancelled. Prior to 1864 all the post¬ 
masters received their compensation in this way. The amount 
paid for the transportation of the mail is larger than that paid 
to the postmasters. In only a few years has the income of the 
Post Office Department equaled or exceeded the expenditures. 
As the population of the country becomes more dense, 

1 Farrar, page 846. 


122 


THE CONSTITUTION 


i. vm. 7. 


the relative cost of transporting the mails may be expected to 
diminish. 

Rates of Postage. —Mailable matter is divided into four 
classes ; namely, first, letters ; second, regular publications; 
third, printed books, circulars, pamphlets, etc. ; fourth, mer¬ 
chandise. (1) Letters— postage two cents for each ounce or 
fraction of an ounce. On drop letters, two cents at free de¬ 
livery offices; one cent at other offices. Postal cards, one 

cent. (2) Regular publications , issued as often as four times a 
year—for publishers and news agents, one cent a pound ; but 
free to subscribers within the county, at other than free-de- 
livery offices. For all other persons, one cent for four ounces. 
(3) Printed books, circulars, pamphlets, etc.—one cent for two 
ounces; limit of weight, four pounds, except for a single 

book. (4) Parcel Post (matter not included in the above 
classes)—rates according to distance. 

Former Rates for Letters. —Letter postage is now two 
cents for any distance within the United States. Formerly 
the rates were much higher, and were different for different 
distances. From 1792 to 1845 letter postage ranged from six 
cents to twenty-five, according to distance. In 1845 it was 
reduced to five cents for 300 miles and under, and ten cents 
for greater distances. In 1851 it was made three cents for 
3,000 miles, if prepaid, and five cents if not prepaid. For 
greater distances these rates were doubled. In 1863 a uni¬ 
form rate was established for all distances— three cents— 
which in 1883 was reduced to two cents. 

Until 1845 letters were single or double, according as there 
was one piece of paper or two; after that time a letter or par¬ 
cel not exceeding half an ounce was deemed a single letter. 
Since July 1, 1885, a letter weighing one ounce is carried for 
two cents. Prior to 1851 there was no reduction for prepay¬ 
ment. In that year a difference of two cents was made, as 
stated above. In 1855 prepayment was required, and this 
continues to be the rule. 


1. VIII. 7. 


POST OFFICES 


123 


Stamps.— Postage stamps were introduced in 1847, but did 
not come into general use till 1855, when letters had to be 
prepaid. Stamped envelopes were furnished first in 1852. 
In 1872 postal cards were authorized, which are carried for 
one cent each, including the cost of the card. Double or 
reply postal cards were authorized in 1879. In 1898 private 
mailing cards were admitted to the mails at one cent postage. 

Registered Letters. —In 1855, for the greater security of 
valuable letters, the Postmaster-General was authorized to 
establish a plan for registration. A fee of ten cents besides 
the regular postage is charged for registering a letter. The 
government takes special charge of such letters, but does not 
hold itself generally responsible if they are lost. In 1897 
Congress authorized the Postmaster-General to prescribe rules 
under which persons might be indemnified out of the postal 
revenues for valuable matter lost in the mails. The matter 
must be registered, and the limit of indemnity is fifty dollars 
or the actual value of the article when that is less than fifty 
dollars. 

Money Orders. —In 1864 the postal money order system was 
established. This enables one to send money by depositing 
the amount with a postmaster, and receiving an order on the 
postmaster of the place where his correspondent lives. A 
small fee is charged, according to the amount of the order. 

Free Delivery. —In 1863 the Postmaster-General was au¬ 
thorized to provide for the free delivery of letters by carriers, 
in cases which, in his judgment, might justify it. In 1865 
the system of free delivery was required to be established in 
every place containing a population of fifty thousand, and at 
such other places as might be thought best. In 1873 letter 
carriers were authorized in all places containing not less than 
twenty thousand inhabitants. In 1887 free delivery was 
authorized for places of not less than ten thousand inhabit¬ 
ants, or from post offices whose revenue is not less than ten 
thousand dollars. Provision is made for immediate delivery 


124 


THE CONSTITUTION 


1. VIII. 7. 


of letters bearing a special extra stamp of ten cents, within 
the carrier limits of a free delivery office, or within one mile 
of any other office. 

Rural Free Delivery. —The first experiments in rural free 
delivery were made in 1896 in forty-four different localities, 
and now there are more than forty thousand established routes 
in the United States. The system brings the mail to the door 
of the farmer, just as the free delivery system in the cities 
brings the merchant’s mail to his store. The cost of the serv¬ 
ice is more than $40,000,000 a year, which is about five times 
the amount of postage collected on the rural mail routes. 

Unclaimed Letters. —Letters unclaimed for a certain time 
are advertised; if not called for, they are sent to the Dead- 
letter Office. Here they are opened and returned, if possible, 
to the writers. The name and address of the writer upon the 
envelope secures its return to him if not called for; in this 
case it is not sent to the Dead-letter Office. 

The Franking Privilege, or privilege of sending and receiving mail 
matter free, was formerly enjoyed by the President, Vice President, the 
Cabinet officers, the members of the Senate and House of Kepresenta- 
tives, the delegates from the Territories, and some others. In general, 
it was limited to the term of office, but senators and representatives 
could retain it till the December following the expiration of their term. 
To each of the first four Presidents it was voted for the remainder of 
his life, and subsequently it was conferred for life on all ex-Presi- 
dents. It has also been voted to the widows of the Presidents during 
their lives. In February, 1873, the franking privilege was abolished, the 
/act taking effect the 1st of July following: but modifications have since 
been made. The act of March, 1877, as amended by acts of 1879 and 
1884, provides that letters and packages on government business may be 
sent free by all officers of the United States government (not including 
members of Congress), and that senators and representatives may receive 
and send free all documents printed by Congress. In 1895 the. franking 
privilege was extended to the official correspondence of senators and repre¬ 
sentatives. 

Unmailable Matter.—It is generally supposed that every citizen has 
the right to use the mails for the transmission of his correspondence ; but 


1. VIII. 7. 


POST ROADS 


125 


in fact this right is subject to some limitations. Congress has the power 
to prescribe what is mailable matter, and it has done so, in a negative man¬ 
ner, by enacting that indecent, obscene, or fraudulent matter shall not be 
transmitted. It has also empowered the Postmaster-General to order any 
postmaster to withhold the mail addressed to any person or firm conduct¬ 
ing a business which he is satisfied is a fraudulent one. This is a great 
power in modern times when the right to use the public mails is so vital 
to the conduct of all intercourse. It has been said by some of the courts 
that the use of the mails is a privilege and not a right, and that Congress 
can withhold it from any class of people under its power to prescribe what 
is mailable matter. The constitutionality of this statement of law may be 
questioned. It may also be questioned whether it would not be better to 
withhold such great power from executive hands and leave the laws limit¬ 
ing the use of the mails to be applied by the courts, according to their 
usual procedure. By thus postponing executive action until the fact of 
fraud be ascertained by the courts, and confining such action to execution 
of the findings of the courts, Congress would adopt a course more in har¬ 
mony with the genius of our institutions and the principles on which the 
government was established. 

Mail Routes. —Obstruction of the mails is forbidden under 
heavy penalties, as is the carrying of mail matter outside of 
the mails by public carriers, except in stamped envelopes. 

In 1825 it was enacted “ That no other than a free white per¬ 
son shall be employed in conveying the mail.” This disquali¬ 
fication continued for forty years. 

Postal Savings System. —By act of Congress in 1910, a 
postal savings system was established, under the control of 
the Postmaster-General, Secretary of the Treasury, and At¬ 
torney-General. The first depositories were opened in 1911, 
and the system was rapidly extended to all the more important 
post offices. In less than a year the deposits had grown to 
$11,000,000. The depositors receive two per cent interest, and 
the funds are loaned by the government, at a slightly higher 
rate, to banks giving suitable security. 

Post Roads. —The power to establish post roads has been 
interpreted to include the power of making internal improve¬ 
ments. In 1803 Congress authorized three per cent of the 


120 


THE CONSTITUTION 


i. vm. a 


net proceeds of the sale of public lands in the State of Ohio 
to be paid to that State for the construction of roads. In 
1806 an act was passed for the construction of the Cumber¬ 
land Road —more commonly called the National Road —from 
the Biver Potomac to the Ohio. Both these acts were ap¬ 
proved by Mr. Jefferson, as President, though in one of his 
messages he expresses the opinion that Congress, under the 
Constitution, does not possess the power of making roads. 
While doubting the existence of the power, he appeared to 
favor an amendment to the Constitution conferring it upon 
Congress. 

Proposed Government Control of Telegraphs.—As the ob¬ 
ject of granting to Congress the power to establish post offices 
and post roads was to give them the control of the transmis¬ 
sion of correspondence, it is claimed that the electric tele¬ 
graph should be managed by the government. The control 
over this agency, it is said, can be abdicated by the govern¬ 
ment with no more propriety than that over correspondence 
by railroad or steamboat. The subject has been much dis¬ 
cussed in this country, and congressional committees have 
reported favorably upon it. Most of the governments of 
Europe manage the telegraph by their own officials, and 
their experience is said to be satisfactory. 

Clause 8.— To 'promote the progress of science and useful 
arts by securing for limited times to authors and inventors 
the exclusive right to their respective writings and discoveries ; 

This clause authorizes Congress to issue copyrights to au¬ 
thors, and patents to inventors. There is no limitation to 
science in the strict sense of the word, nor to the useful as 
distinguished from the fine arts. All books, maps, charts, 
musical compositions, engravings, photographs (or negatives), 
chromos, statues, etc., whatever the subject may be, are in¬ 
cluded, and so are all inventions. There are many copyrights 


1. VIII. 8. 


COPYRIGHTS 


127 


and patents issued which promote the progress neither of 
science nor of the useful arts. But there can be no question 
as to the propriety of giving to authors and inventors the 
exclusive right for a limited time to their works. 

Copyrights. —The exclusive right of an author to his writ¬ 
ings is secured to him by giving him a copyright—that is, 
the exclusive right to print, publish, and sell them. His 
unpublished writings are clearly his own property. He needs 
no copyright for them. 

Term of a Copyright. —Prior to the adoption of the Con¬ 
stitution, the States granted copyrights, and the first act of 
Congress on the subject recognized the rights thus granted. 
The first law was enacted in 1790, and gave to the authors 
the exclusive right to their works for fourteen years, with 
liberty of renewal for a like period. In 1831 the term was 
made twenty-eight years, with the right to renew for fourteen 
years longer. In 1909 the term of the renewal was increased 
to twenty-eight years. If the author has died, the renewal 
may be made by the widow or children. 

Method of Obtaining a Copyright. —A copyright is obtained 
as follows: The book is printed, containing the copyright 
notice, and promptly after publication two copies of the book 
are sent to the Copyright Office, Library of Congress, with an 
application for registration. A money order for one dollar is 
sent for registering the work and for a certificate of registra¬ 
tion. For each additional copy of the certificate fifty cents is 
required. 

The copyright law includes under its protection not only 
books, but also maps, dramatic and musical compositions, en¬ 
gravings, prints, photographs, paintings, and statues. 

To make one’s copyright monopoly enforceable, notice of the 
copyright must be inserted on the title page, or next following 
page, of every copy of the book, or such notice must be inscribed 
upon each map, engraving, etc., as the case may be. The usual 
form of this notice is as follows: “Copyright, 19—, by A. B.” 


128 


THE CONSTITUTION 


1. VIII. 8. 


The copyright monopoly is not enforceable until the two copies of the 
work have been deposited. If there are different editions of the work 
issued at the same time, the two copies deposited must be of the best 
edition The penalty for failure to send these copies if demanded is one 
hundred dollars. 

Until 1870 the copyright was issued by the clerk of the District Court of 
the United States. In books printed early in the nineteenth century, the 
copyright entry on the page following the title page was full and formal, 
sometimes covering the entire page. The copies of books and other articles 
for which copyrights were obtained were kept in the Department of State 
till 1859, when they were transferred to the Department of the Interior. 
In 1870 they were placed under the control of the Librarian of Congress. 

A copyright is assignable in law, but the assignment must be recorded 
in the Copyright Office within three calendar months after its execution 
in the United States or six months after its execution in foreign countries. 
The mode of securing a renewal of a copyright is the same as for obtain¬ 
ing the original; it must be done within one year before the expiration 
of the first term. 

In 1891 the laws were so amended as to permit copyright 
to foreigners on the same basis as to citizens in cases where 
the nation of the foreigner permits copyright to American 
citizens. This law does not authorize the owner of copy¬ 
rights issued under it to import the books from foreign coun¬ 
tries. In order to obtain the monopoly offered by the law he 
must have the type set in the United States. 

Patents. —Provision was made by Congress in 1790 for 
giving to inventors the exclusive right to their discoveries. 
From that time to the present patents have been issued, but 
the laws governing them have been much altered. 

At first, applications for patents were made to the Secretary of State, 
and the decision was made by a Board consisting of the Secretary of 
State, the Secretary of War, and the Attorney-General. In 1793 the 
Secretary of State alone was authorized to issue patents. 

The Patent Office. —In 1836 an office, or bureau, was 
created in the Department of State, under the name of the 
Patent Office, the chief officer being styled the Commissioner 
of Patents. From that time, patents have been issued by the 


I. Via. 8. 


PATENTS 


129 


Commissioner. The Patent Office was transferred to the 
Department of the Interior in 1849, when this latter depart¬ 
ment was created. Originally patents were signed by the 
President of the United States; then by the Secretary of 
State and the Commissioner of Patents; now by the Secre¬ 
tary of the Interior and the Commissioner. 

Term of a Patent. —The term for which a patent was valid 
was fourteen years originally, but in 1870 it was made seven¬ 
teen years. It is competent for Congress to extend the 
time of a patent, whether application be made before or after 
the expiration of the original term. 

In 1836 the power to extend for seven years if the patentee had failed 
to receive a suitable return for his time, ingenuity, and expense, was con¬ 
ferred on a Board consisting of the Secretary of State, the Commissioner 
of Patents, and the Solicitor of the Treasury. But such extension must 
be granted before the expiration of the time for which the patent was 
originally issued. Since 1848 the power to extend in such cases has been 
exercised by the Commissioner. 

Prior to the formation of the Constitution the issuing of 
patents, as well as the granting of copyrights, was lodged in 
the several States. But while copyrights were granted, at 
least in some of the States, by general legislation, no patents 
were issued except by special legislative acts. 1 

Models.—When application is made for a patent, a model 
of the article may be required by the Commissioner to be 
deposited in the Patent Office. There has gradually been 
gathered in this way a vast collection of models and speci¬ 
mens, making the Patent Office at Washington a place of 
resort to most who visit the national capital. Of late years 
it has become customary to require a model to be deposited 
only when necessary to a correct understanding of the article 
by the Commissioner. 

In 1836 the building in which the models were contained was burned, 
and many of them were destroyed; but Congress made an appropriation 
1 Curtis, II., page 3S9. 


A. C.—9 


130 


THE CONSTITUTION 


1. VIII. 8. 


of $100,000 to procure duplicates of those which were the most valuable. 
The present buildings extend over two entire blocks of the city of Wash¬ 
ington. 

Application for a Patent. —The applicant for a patent must 
make oath that he believes himself to be the original inven¬ 
tor of that for which he seeks a patent; he must file a full 
description of the same, and, in all cases admitting it, must 
present drawings. A prior patent by the inventor in a for¬ 
eign country does not debar him from receiving a patent here, 
provided that application is made for it within twelve months 
of the application for the foreign patent. 

Fees. —The fees in the Patent Office are, on filing the 
application for a patent, fifteen dollars ; on issuing the 
patent, twenty dollars; on application for extension of a 
patent, fifty dollars ; on granting an extension, fifty dollars. 
Patents may be granted for designs as well as for machines. 
Since 1870 trade-marks have been registered at the Patent 
Office. In 1879 the Supreme Court decided that Congress 
could not control the use of trade-marks under this clause of 
the Constitution ; and since then only those trade-marks 
used in foreign commerce, or commerce with the Indians, 
have received the protection of the general government. 
Trade-marks, however, are protected by State laws in a large 
number of States. 

Receipts and Expenses —The receipts of the Patent Office are usually 
more than the expenditures, though there have been exceptional years. 
From the beginning up to 1915, the number of patents granted was about 
1,123,000. Comparing the years 1840 and 1914, we find a very remark¬ 
able increase. Thus, in 1840 the applications were 735, and in 1914 the 
number was 67,774 ; in 1840, patents issued, 458; in 1914 the number was 
39,945 ; in 1840 the receipts and expenditures were respectively $38,056 
and $39,020 ; in 1914 they were $2,251,892 and $2,000,770. 

Annual Report.—The Commissioner of Patents makes an annual re¬ 
port, giving, among other things, a list of all patents granted, with the 
names of the patentees. Specifications and drawings of all the inventions 
are also puolished. The Patent Office Reports now for m many volumes, 


i. vm. 9 . 


PIRACY 


131 


and constitute a record of the industrial progress of the country. For a 
number of years prior to 1863, one volume of the annual report was devoted 
to Agriculture ; but in 1862 a Department of Agriculture was established, 
with a Commissioner at the head of it, and the duty of making an annual 
report on Agriculture was transferred to this Commissioner. In 1871 the 
publication of the specifications and engravings was discontinued in con¬ 
nection with the annual report of the Commissioner of Patents, and pub¬ 
lished monthly in a separate volume. A weekly Gazette was established, 
containing lists of patentees and patents issued, together with abbreviated 
descriptions and drawings, and decisions of the office on important points 
of procedure, and important decisions of the courts. 

Patents are assignable, but the assignment must be recorded 
in the Patent Office. All patentees, and those making or 
selling patented articles under them, must cause the word 
“ patented,” with the date of the patent, to be affixed to each 
article, that the public may have notice of its character. 

Clause 9 . —To constitute tribunals inferior to the Su¬ 
preme Court; 

United States Courts. —The Constitution itself provides for 
the Supreme Court (Art. III.), but leaves to Congress the 
question of the inferior courts. Congress, at its first session, 
established two tribunals inferior to the Supreme Court, called 
the Circuit and District Courts; in 1891 it established a third, 
called the Circuit Court of Appeals; and in 1911 it abolished 
the ordinary Circuit Courts. The Court of Claims was estab¬ 
lished in 1855, and other special courts at later dates. All 
these will be considered under Article III. 

Clause 10 . —To define and punish piracies and felonies 
committed on the high seas , and offenses against the law of 
nations ; 

Piracy is robbery at sea. The common law recognizes 
and punishes it as an offense against the universal law of na¬ 
tions ; a pirate being deemed an enemy of the human race. 
The Continental Congress, in 1781, declared death to be the 


132 


THE CONSTITUTION 


1. vm. 11. 


punishment for piracy. In 1790 an act was passed by Con¬ 
gress providing for the same punishment. In 1820 Congress 
passed an act which declared it to be piracy to land on a for¬ 
eign shore and seize negroes or mulattoes, or decoy them on 
board vessels, with intent to make them slaves. 

Congress may define as well as punish piracy. Under this 
clause Congress has made the slave trade piracy—it has ex¬ 
tended the definition of piracy to include what some nations 
may not regard as piracy. Before Congress could punish of¬ 
fenses against the law of nations it must define such acts or 
declare them to be such offenses. 1 

Felony. —At common law that was considered felony which occasioned 
the forfeiture of lands and goods, and for which the punishment of death 
might also be inflicted. Capital punishment does not necessarily enter into 
the definition of felony, yet the idea of felony is so generally connected 
with that of capital punishment that it is difficult to separate them. 4 

By high seas is meant, in general terms, the ocean, whose 
waters are common to all nations. 

A nation is responsible for its citizens, and must punish 
them if they interfere with the rights of other nations ; oth¬ 
erwise, there would be retaliation, and friendly relations 
would be disturbed. The Constitution, therefore, gives to 
Congress authority to define and punish offenses against the 
law of nations. 

Clause II.— To declare war, grant letters of marque and 
reprisal, and make rules concerning captures on land and 
water ; 

The power to declare war is the power to decide whether or 
not there shall be war in a given case. As reported by the 
Committee of Detail, the expression was “ to make war.” This 
power belongs to the sovereignty of a nation. It is one of the 

* Wheaton's International Law, § 124. Curtis, II., page 331. 

3 Tiffany’s Treatise on Government , page 241. 


i vm. u. 


DECLARATIONS OF WAR 


133 


highest acts which any government can perform, involving 
interests of the greatest importance, and affecting the property 
and lives of the people. In Great Britain the power to declare 
war is the exclusive prerogative of the Crown. Mr. Pinckney 
proposed in the Convention that it should be in the Senate ; so 
Mr. Hamilton also ; Mr. Butler proposed that it should be in 
the President. 

Action of Congress in our Wars _In two of the three 

wars in which the United States has been engaged, there was 
a formal declaration of war ; in one, war was otherwise recog¬ 
nized as already existing. Thus, in 1812 it was enacted 
“That war be and the same is hereby declared to exist be¬ 
tween the United Kingdom of Great Britain and Ireland and 
the dependencies thereof, and the United States of America 
and their territories.” On April 24th, 1898, it was enacted 
“ That war be and the same is hereby declared to exist, and 
that war has existed since the twenty-first day of April ” be¬ 
tween the United States and Spain. In 1846 the preamble of 
the act of Congress says, “ Whereas, by the act of the Repub¬ 
lic of Mexico, a state of war exists between that government 
and the United States.” In 1798 Congress declared the 
United States to be freed and exonerated from the stipula¬ 
tions of the treaties with France, because that power had re¬ 
peatedly violated the treaties and refused all reparation. A 
few days later an act was passed authorizing the President 
to instruct the commanders of armed vessels to capture any 
French armed vessels. But a change in the French govern¬ 
ment finally averted open war. 

The Civil War. —In the case of the civil war there was 
no act of Congress declaring war, as war is an armed con¬ 
flict between nations. The act of July 22d, 1861, is entitled 
“ An act to authorize the employment of volunteers to aid in 
enforcing the laws and protecting public property.” The 
preamble recites that certain of the forts, arsenals, and other 
property of the United States had been seized, and other 


134 


THE CONSTITUTION 


i. vm. ii. 


violations of law committed and threatened, and the act 
authorizes the President to accept the services of 500,000 
volunteers. The conflict assumed the magnitude and propor¬ 
tions of war, and those in insurrection were recognized by 
various nations as belligerents, though not as an independent 
state or nation. 

The Philippine Insurrection.—By the treaty of Paris, in 1899 the Philip¬ 
pine Islands passed under the sovereignty of the United States. Some 
insurgent Filipinos, however, continued in arms and directed against the 
forces of the United States the hostilities in which they had formerly been 
engaged against Spain. An army of about 40,000 men, regulars and vol¬ 
unteers, was transported to those islands by the President without any 
special authorization of Congress, for the purpose of suppressing the hos¬ 
tilities. The insurgents were never recognized as belligerents by any 
other nation and war was never declared against them or formally recog¬ 
nized by the United States as existing. 

The Chinese Disorders.—During the Boxer outbreak in China in 1900 
the United States, cooperating with several other powers, sent vessels of the 
navy and several regiments of soldiers to rescue our minister and protect 
American citizens in China. The allied forces occupied Tientsin and 
Pekin, and their operations assumed the magnitude and character of war; 
but the action of the American force was by direction of the President 
alone, without any action on the part of Congress. 

Letters of Marque and Reprisal. —The word marque signi¬ 
fies landmark or boundary, and letters of marque denote the 
commission issued to a private person, authorizing him to 
pass the frontier and take the persons or property of the sub¬ 
jects of another nation from which injury has been received. 
The word reprisal, meaning a retaking, indicates the purpose 
for which the commission is issued. A vessel bearing such 
letters is called a privateer. The law of nations recognizes 
the right of one nation to take this mode of obtaining redress 
from another ; but in 1856 and later years almost all civilized 
nations have agreed among themselves to abolish privateering. 
The United States has not acceded to this agreement, but in 
the war with Spain (1898) privateering was not allowed. Leb 


i. vin. 12. 


TO RAISE AND SUPPORT ARMIES 


135 


ters of marque have sometimes been issued before a declara¬ 
tion of war. They have prevented some wars and have oc¬ 
casioned others. 

Letters of marque were authorized by Congress in the time 
of the civil war, but none were issued by the President. 
They were used in the war of the Revolution and in the war 
of 1812. 


The rules concerning captures are not limited to those made beyond 
the nation’s territory, but apply also to the property of enemies found 
within the territory. The Supreme Court has decided that these rules are 
an express grant to Congress of the power of confiscating enemy’s prop¬ 
erty found within the territory at the declaration of war. 1 

Clause 12 .—To raise and support armies , but no appro¬ 
priation of money to that use shall he for a longer term than 
two years ; 

Powers under Articles of Confederation _Under the Arti¬ 

cles of Confederation, Congress could declare war but could 
not raise armies. Congress had power only “to agree upon 
the number of land forces, and to make requisitions from each 
State for its quota, in proportion to the number of white in¬ 
habitants in such State.” 2 “The experience of the whole 
country, during the Revolutionary War, established, to the 
satisfaction of every statesman, the utter inadequacy and im¬ 
propriety of this system of requisition. It was equally at war 
with economy, efficiency, and safety.” 3 

Powers under the Constitution. —This clause in the pres¬ 
ent Constitution gives the power to raise and support a stand¬ 
ing army, or “ the military peace establishment of the United 
States,” and the large armies necessary in times of war. Five 
times in our national history, since the war of the American 
Revolution, has it been necessary to call out large bodies of 
men : in the war with Great Britain in 1812, in that with 

1 8 Cranch, page 110. a Articles of Confederation, Art. IX. 3 Story, $ llTd. 


136 


THE CONSTITUTION 


1. VUI. 12. 


Mexico in 1846, during the civil war, in the Spanish war, 
and in the Philippine insurrection. The number of men 
called into the service of the government in the civil war 
was vastly greater than in any of the others. There were over 
a million of men in the Army of the United States at the 
close of the war. 

The Draft Act. —By act of March, 1863, provision was made for enroll¬ 
ing and calling out the national forces. Congress enacted that all citizens, 
and those who had declared their purpose to become such, between the 
ages of twenty and forty-five, should, with some exceptions, constitute the 
national forces, and should be liable to perform military duty when called 
out by the President. It was under this act that men were drafted. The 
quotas to be drawn were assigned to the different districts, taking into con¬ 
sideration the number of volunteers and militia furnished by them respec¬ 
tively. 

By act of April 22d, 1898, the military forces of the United States are 
declared to consist of all able-bodied men between the ages of eighteen 
and forty-five years. 

The Regular Army. —There was a small standing army at 
the time the Constitution was formed. The organization has 
been continued to this time. By act of Congress of July, 
1866, the regular army was to consist of five regiments of ar¬ 
tillery, ten of cavalry, and forty-five of infantry. Of general 
officers there were one General, one Lieutenant General, five 
Major Generals, and ten Brigadier Generals. The army was 
reduced after 1866 to 27,000. It was provided in 1870 that 
no new appointments should be made of Major Generals or 
of Brigadier Generals till the number should be below three 
and six respectively; and that then the number of Major 
Generals should not exceed three, or that of Brigadier Gener¬ 
als exceed six. It was also provided in the same year that the 
offices of General and Lieutenant General should cdase with 
the officers then in office. 1 In 1898 the army was increased 
to about 60,000. The law of 1901 provided that the number 


1 Since 1882 all officers are retired at the age of sixty-four. 


1. VIII. 13. TO PROVIDE AND MAINTAIN A NAVY 


137 


of enlisted men should not exceed 100,000. In 1907 the artil¬ 
lery was separated into a corps of coast artillery and six regi¬ 
ments of field artillery. In 1916 a law was passed which pro¬ 
vided for increasing the army to more than 200,000 men. The 
army was made to consist of sixty-five regiments of infantry, 
twenty-five regiments of cavalry, twenty-one regiments of light 
artillery, and five regiments of engineers. 

Offices of General and Lieutenant General.—The office of Lieutenant 
General was created in 1798, and General Washington received the ap¬ 
pointment. This was abolished and the office of General was created in 
1799, and this was abolished in 1802. In 1855 the office of Lieutenant 
General was revived, that it might be conferred by brevet on General 
Winfield Scott. In 1864 General Ulysses S. Grant was appointed Lieu¬ 
tenant General, and became the highest military officer under the Presi¬ 
dent. The office of General was revived in 1866, and General Grant was 
appointed to the office. Major General William T. Sherman was then 
appointed Lieutenant General. On the election of General Grant to the 
Presidency, Lieutenant General Sherman was made General, and Major 
General Philip H. Sheridan Lieutenant General. Several years after 
General Sherman’s retirement in 1883, Lieutenant General Sheridan was 
made General just before his death in 1888. John M. Schofield became 
Lieutenant General February 5th, 1895. He was retired September 29th, 
1895 On June 8, 1900, Major General Nelson A. Miles was made Lieu¬ 
tenant General. 

The appropriation is limited to two years, which is the 
congressional term. This gives the virtual control of the 
army to the people. 1 

Clause 13 .—To provide and maintain a navy; 

Department of the Navy.—There was no opposition in the 
Convention to giving to Congress this power, but in some of 
the State conventions much hostility was manifested. The 
Department of the Navy was not established till 1798 ; the 
general charge of the naval forces and the matters pertaining 

1 For more than a century preceding the American Revolution the term of two years 
had been the period of appropriations for military purposes in Great Britain. 


138 


THE CONSTITUTION 


1 . VIH. 1*. 


to naval affairs having been up to that time committed to the 
Department of War, which had been established in 1789. It 
was not till the brilliant naval achievements during the war 
with Great Britain that all jealousy disappeared, and the 
desire to make our navy equal to that of other nations was 
manifested by the whole nation. With an immense seacoast 
on both oceans, and with a great commerce with all nations, 
the United States needs a strong naval force for the protec¬ 
tion of our maritime interests. 

The Navy Department has been, from its establishment in 
1798, under the charge of a Secretary. 

The various officers of the navy are as follows, with their rank corre¬ 
sponding to that of the following officers of the army; but generally one 
or more of the highest four ranks are dispensed with. For instance, in 
1900 there were no Vice Admirals or Commodores on the active list. 


Army. 


Navy. 


General. 

Lieutenant General. 
Major General. 
Brigadier General. 
Colonel. 

Lieutenant Colonel. 
Major. 

Captain. 

First Lieutenant. 
Second Lieutenant. 


Admiral. 

Vice Admiral. 

Rear Admiral. 
Commodore. 

Captain. 

Commander. 

Lieutenant Commander. 
Lieutenant. 

Lieutenant, junior grade. 
Ensign. 


Grades in both army and navy identical with some of these were re¬ 
solved on by the Continental Congress in 1776. 

Until 1862 the office of Captain was the highest recognized by law. A 
Captain commanding two or more ships was called a Commodore by cus¬ 
tom, and this title, when once applied to an officer, was usually continued. 3 
In 1862 the offices of Rear Admiral and Commodore were created, in 
1864 that of Vice Admiral, and in 1866 that of Admiral. By act of Jan¬ 
uary 24th, 1873, Congress provided that when the offices of Admiral and 
Vice Admiral became vacant the grades should cease to exist. Under 


* Before 1883, officers of this rank were designated as mastert. 

* Giilet’s Federal Government , page 336. 


i. vm. 14. 


LAND AND NAVAL FORCES 


139 


this law the office of Vice Admiral expired with the death of Stephen C. 
Iiowan, March 31st, 1890; that of Admiral with the death of David D. 
Porter, February 13th, 1891. On March 2d, 1899, Congress revived the 
rank of Admiral of the Navy, and George Dewey was appointed to it; the 
act provides that the office shall cease to exist when it is vacated by death 
or otherwise. This action was in recognition of Dewey’s victory over the 
Spanish in Manila Bay, May 1st, 1898. The act of March 3d, 1899, abol¬ 
ished the rank of Commodore, except in the retired list, and increased the 
number of Rear Admirals. In 1916 Congress reestablished the rank of 
Admiral and Vice Admiral. 

Clause 14 . — To make rules for the government and regula 
tion of the land and naval forces ; 

Rules for Army and Navy. —The power to declare and 
carry on war involves that of providing armies and navies, 
and that of governing the forces thus raised. Rules for the 
government of these forces have been made by Congress in 
accordance with this clause. 1 In 1800, 2 an act was passed 
establishing the Articles of War for the government of the 
army ; but their provisions have been altered by a number 
of later acts. Every officer must subscribe these articles, 
in number now a hundred and twenty-one; parts of them are 
read to every recruit at the time of enlistment, and are read 
and explained every six months to the soldiers of every 
garrison, regiment, or company. 

The Articles for the Government of the Navy now in force 
were enacted in 1862, 3 and have been modified slightly at 
later dates. 

Punishments. —For minor offenses in the navy the com¬ 
manding officer may inflict such punishments as reprimand, 
suspension from duty, arrest, or confinement, none of which 
shall continue longer than ten days, except a further period 
be necessary to bring the offender to a court-martial. For 

* Our first code of Articles of War, however, was adopted bv the Continental Concrress 
in 1775. This was replaced in 1776 by another, which with slight modifications remained 
in force till 1S06. 

» April 10th. 


* July 17th. 


140 


THE CONSTITUTION 


1. VIII. 15. 


slight offenses in the army, captains of companies may take 
away some privilege or impose extra duty; for offenses some¬ 
what more serious, a summary court-martial, composed of one 
officer, may sentence to confinement at hard labor for not more 
than three months, or impose fines of not more than three 
months’ pay. For greater offenses, both in the army and in 
the navy, a trial is held before a court-martial composed of a 
number of officers, and severer punishments may be inflicted, 
even to the taking of life. For capital punishment and in 
some other cases the approval of the President is necessary. 
Until 1850 flogging was one of the punishments inflicted in the 
navy, but in that year it was abolished in the navy and on 
board vessels of commerce. Flogging in the army was pro¬ 
hibited in 1812, but in 1833 an exception was made in the case 
of desertion. In 1861, 1 however, it was abolished. 

Parliament always asserted its right to make rules and regulations for 
the government of the army on the ground of the subordination of the 
military to the civil power. The present British and American rules and 
regulations are founded upon the code which Gustavus Adolphus of Swe¬ 
den established in his armies in the seventeenth century. 

Clause 15 .— To provide for calling forth the militia to 
execute the laws of the Union , suppress insurrections , and re¬ 
pel invasions ; 

Clause 16 .—To provide for organizing, arming, and dis¬ 
ciplining the militia, and for governing such part of them as 
may be employed in the service of the United States, reserving 
to the States respectively the appointment of the officers, and 
the authority of training the militia according to the discipline 
prescribed by Congress ; 

The Militia are distinguished from the regular army. They 
are the citizen soldiers of the country, liable to be called out in 
cases of emergency. These clauses virtually give Congress 
the whole power in regard to the militia. I 11 1792 2 an act 


1 August 5th. 


s May 8th. 


i. vm. i6. 


THE MILITIA 


141 


was passed “ to provide for the national defense by establish¬ 
ing a uniform militia throughout the United States.” It 
provided for the enrolling of “ every free able-bodied white 
male citizen of the respective States ” between the ages of 
eighteen and forty-five. The act of March 2d, 1867, pro¬ 
vided for the enrolling of negroes by striking out the word 
“ white ” from the act of 1792. 

A law providing for calling forth the militia in accordance with Clause 
15 was passed in 1792.' An amended act was passed in 1795,* which is 
still in force. This law authorized the President to call out the militia, 
for the purposes specified, as he might judge necessary. The militia, 
when in the service of the United States, were to be subject to the same 
articles of war as the regular troops, and their time of service could not 
exceed three months in any one year. In 1862 this time was extended 
to nine months ; and it was provided, if the militia had not been enrolled 
in any State, that the President might make all necessary rules and regu¬ 
lations for doing it. 

The Naval Militia.—Since 1890 most of the States on the seaboard and 
the Great Lakes have organized bodies of naval militia; and Congress has 
made appropriations, and has authorized the Secretary of the Navy to 
loan vessels of the navy, for the purpose of affording them drill and in¬ 
struction. The naval militia forms a reserve force capable of manning 
auxiliary ships in case of war, especially for coast defense. 

National Service of the Militia.—The militia have been 
called out three times in the history of the country. The first 
was at the insurrection in the western counties of Pennsylvania, 
known as the “Whisky Rebellion.” A portion of the inhab¬ 
itants had opposed the execution of the laws imposing duties 
on domestic spirits, and this opposition was at length carried 
so far as to render necessary the interposition of force. On 
the 7th of August, 1794, the President issued a proclamation 
commanding the insurgents to disperse, and at the same time 
made requisitions on the governors of New Jersey, Pennsyl¬ 
vania, Maryland, and Virginia, for their quotas of twelve 
thousand men. The number was afterward increased to 

1 May 2d. 2 February 28th. * July 17th. 


142 


THE CONSTITUTION 


1. VTU. 16. 


fifteen thousand. On the 25th of September another procla¬ 
mation was issued, declaring the necessity of putting the force 
in motion. By this energetic action of the President the in¬ 
surrection was quelled without bloodshed. 1 In his next mes¬ 
sage to Congress the President recommended a revision of the 
militia law, which was made in 1795. 

The militia were again called out in 1812, in the war with 
Great Britain. In this case it was to “ repel invasions.” 

Though the President was authorized, by act of Congress 
May 13th, 1846, to employ the militia, as well as the naval 
and military forces, and to accept the services of volunteers 
in the prosecution of the war with Mexico, the militia were 
not called out. The troops furnished by the several States 
were all volunteers. 

In the Civil War. —The third instance in which the mili¬ 
tia were called out was during the civil war. The first call 
was by proclamation of President Lincoln on the 15th day 
of April, 1861, for “the militia of the several States of the 
Union to the aggregate number of 75,000, in order to sup¬ 
press said combinations and to cause the laws to be duly 
executed.” The President, by order dated August 4th, 1862, 
called for a draft of 300,000 militia to serve for nine months. 
And again June 15th, 1863, he called for 100,000 militia from 
the States of Maryland, Pennsylvania, Ohio, and West Vir¬ 
ginia, to serve six months. Thus, in the civil war there 
were three calls for the militia , as such, to the number of 
475,000 men. This was but a small part of the number in the 
service, the others being called for as volunteers , and under 
the act to enroll and call out the national forces. The whole 
number mustered into the service of the United States in the 
four years from April, 1861, was 2,656,553. 2 

In the war with Spain in 1898 the troops drawn from the 
several States were not militia but volunteers, though great 

1 Marshall's Life of Washington , Vol. V., Chap. viii. Pitkin, Vol. II., Chap, xxiii. 

J Report of Secretary of War, November, 1866. 


1. VIII. IT. 


THE DISTRICT OF COLUMBIA 


143 


numbers of them had been trained in the State militia and 
’were members of militia regiments when they enlisted as 
volunteers. A law passed in 1916 enabled the President in 
that year to draft the organized militia into the national serv¬ 
ice for the purpose of guarding the Mexican border. 

Clause 17 .—To exercise exclusive legislation in all cases 
whatsoever, over such district (not exceeding ten miles square) 
as may, by cession of particular States and the dcceptance of 
Congress, become the seat of the government of the United 
States, and to exercise like authority over all places purchased 
by the consent of the legislature of the State in ivhich the same 
shall be, for the erection of forts, magazines, arsenals, dock¬ 
yards, and other needful buildings; and 

District of Columbia. —The district for the government of 
which provision is here made, was ceded to the United States 
by Maryland and Virginia, and accepted by Congress July 
16th, 1790. Maryland made the cession of that part lying 
east of the Potomac in December, 1788, and Virginia the 
part west of the Potomac in December, 1789. The act of 
Congress accepting the cession provides “ that a district of 
territory not exceeding ten miles square, to be located on the 
river Potomac, at some place between the mouths of the East¬ 
ern Branch and Connogochegue, be, and the same is hereby 
accepted, for the permanent seat of government of the United 
States.” The precise location was to be determined by com¬ 
missioners to be appointed by the President. 

Location of the National Capital. —The act further pro¬ 
vided that prior to the first Monday of December of that year 
—1790—all the government offices should be removed to 
Philadelphia from New York, where Congress was then in 
session, and should remain there until the first Monday of 
December, 1800, when they were to be removed to the per¬ 
manent seat of government. The Continental Congress held 


144 


THE CONSTITUTION 


1. VIII. 17. 


its sessions in New York from January, 1785, till the Consti¬ 
tution was adopted, and the first Congress under the Consti¬ 
tution held the first two of its three sessions there. Thus, the 
seat of government was at New York from March 4th, 1789, 
till the close of the second session of the first Congress, then 
at Philadelphia for ten years, and has been at Washington 
since December, 1800. 

The original District of Columbia was ten miles square, its 
boundary lines running N. E., S. E., S. W., and N. W. It 
was divided into two counties : Washington, east of the Poto¬ 
mac, and Alexandria, west. In July, 1846, the latter was 
retroceded to Virginia. The present area is about seventy 
square miles. 

Exclusive Power of Congress. —The necessity of exclusive 
power on the part of Congress at the seat of government is 
abundantly manifest. Without it, the officers of the govern¬ 
ment might be interrupted in their duties, the public archives 
and other property injured, and Congress itself insulted. 
Once when the Continental Congress was in session at Phil¬ 
adelphia, the building where it was in session was surrounded 
by some mutinous soldiers, clamoring for their pay. The 
executive government of that State not giving to Congress 
adequate protection, that body immediately adjourned to 
Princeton, New Jersey. 

No less necessary is it that the general government should 
have exclusive control of the places where forts, arsenals, etc., 
are erected. 

The Power not Transferred from the State.— The district 
in which the seat of government is located was obtained by 
cession from the State of Maryland. The other places men¬ 
tioned in the clause have been purchased with the consent of 
the legislature of the State where they are located. In which¬ 
ever manner acquired, the districts are under the exclusive 
control of Congress. They hold to the government the same 
relation as the Territories do. There is no transfer of political 


i. vin. it. 


THE DISTRICT OF COLUMBIA 


145 


power from the State to the general government. The latter 
does not exercise legislation by virtue of any authority de¬ 
rived from the States, but by virtue of the general powers 
granted by the Constitution. 


It was claimed, in a case before the Supreme Court, that Congress, when 
acting under this clause, must be considered as a mere local legislature, 
and not as administering the supreme law of the land. u But the Supreme 
Court held directly the contrary -that the power belonged to 1 Congress as 
the legislature of the Union; for strip them of that character, and they 
would not possess it In no other character can it be exercised. . . . 

Congress is not a local legislature, but exercises this particular power, 
like all its other powers, in its high character, as the legislature of the 
Union.’” 1 

“ The efficiency of the government is all derived from the Constitution, 
and is equal in all places within its jurisdiction. It is supreme every¬ 
where. It is inclusive of all subordinate governments, where there are 
any, and exclusive where there are none. It is permanently exclusive , if 
there can be no other. It is temporarily exclusive till a subordinate is 
instituted. It becomes exclusive again, if a subordinate is extinct, whether 
by right or by wrong; and it remains exclusive, when it is so, till a subor¬ 
dinate is rightfully restored.” 4 

Direct Tax on the District of Columbia. —As direct taxes 
are by Article L, Section 2, Clause 3, to be apportioned 
among the several States according to their respective num¬ 
bers, it might be thought that the inhabitants of the District 
of Columbia would be exempt. But the Supreme Court has 
decided that Congress has the power to levy a direct tax on the 
District of Columbia and also upon the Territories. Congress 
is not bound to do it, but the power is possessed, qualified in 
the same manner as in regard to the States ; i.e ., the tax 
must be in proportion to tiie population. A direct tax was 
levied upon the States in January, 1815. In February of the 
same year a tax was levied on the District of Columbia. The 
direct tax of $20,000,000 a year, according to act of August, 

• Farrar, page 3S0. Story, g 1228. 5 Farrar, page 3C3. 

A 0—10 


L46 


THE CONSTITUTION 


i. vin. n 


1861, included the District of Columbia and all the Territories 
then existing. 

In the cessions to Congress under this clause, there has gen¬ 
erally been a reservation of the right to serve State process, 
civil and criminal, upon persons found therein. Thus, these 
places can not be made sanctuaries for fugitives. 

Slavery Abolished by Congress —On the 16th of April, 

1862, slavery was abolished in the District of Columbia by act 
of Congress. At the same session of Congress (the second of 
the Thirty-seventh Congress) an act was passed declaring 
that there should be neither slavery nor involuntary servitude 
in any of the Territories then existing, or which should be 
formed thereafter. In the District of Columbia provision was 
made to remunerate loyal owners for the slaves thus set free, 
not exceeding $300 each in the aggregate. For this purpose 
the sum of $1,000,000 was appropriated. 

Territorial Government.—In 1871 a territorial government was estab¬ 
lished for the district. It provided for a governor, secretary, council 
(upper legislative house), board of health, and board of public works, to 
be appointed by the President and Senate. There was a house of delegates 
to be elected by the people. The district had also a delegate in Congress. 
In 1874 the act was repealed, and until a new system could be framed the 
government was entrusted to three commissioners, to be appointed by the 
President and Senate. 

Present Government. —In 1878 the government of the dis¬ 
trict was placed under a board of three commissioners; two 
to be appointed by the President and Senate for three years, 
and the third, an officer of the Corps of Engineers of the 
army, to be detailed by the President. These commissioners 
have general charge of the municipal interests of the district, 
appointing the police, firemen, school trustees, and other offi¬ 
cers. They submit each year to the Secretary of the Treas¬ 
ury a detailed estimate of expenses, which, on his approval, is 
transmitted to Congress. If Congress approves the estimate, 
one half the amount is appropriated from the general treas- 


i. vin. is. 


IMPLIED POWERS 


147 


ury, and the other half is assessed upon the taxable property 
of the district. 

A system of courts is provided for the District of Colum¬ 
bia, but the lawmaking power is exercised directly by Con¬ 
gress itself. 

Clause l8.— To make all laws which shall he necessary and 
proper for carrying into execution the foregoing powers, and 
all other powers vested by this Constitution in the government 
of the United States , or in any department or officer thereof. 

Implied Powers of Congress —This clause, in substance, 
was in Mr. Pinckney's plan. The Committee of Detail re¬ 
ported it as it is now, and so did the Committee of Revision. 
There was no opposition or discussion in the Convention, but 
great opposition was made in the State conventions. Patrick 
Henry often speaks of it as “ the sweeping clause," by which 
Congress was to overthrow the States. Those opposed to the 
Constitution assailed it with great vehemence, and endeavored, 
through the prejudice excited, to prevent the conventions of 
the States from ratifying the Constitution. Mr. Randolph's 
plan in relation to the powers of Congress was that “ The 
national legislature ought to be empowered to enjoy the 
legislative rights vested in Congress by the Confederation ; 
and, moreover, to legislate in all cases to which the separate 
States are incompetent, or in which the harmony of the 
United States may be interrupted by the exercise of individ¬ 
ual legislation; to negative all laws passed by the several 
States contravening, in the opinion of the national legislature, 
the Articles of Union, or any treaty subsisting under the au¬ 
thority uf the Union." This was agreed to in committee of 
the whole. 1 The clause as to the power of Congress to veto 
State laws was lost in the Convention, five States voting for 
\t and six against it. Mr. Madison earnestly supported it. 

1 Elliot, V., page 190. 


14S 


THE CONSTITUTION 


i. vm. 18. 


A Constitution Requires Laws. —Writers on constitutional 
law agree that Congress would have had ample authority to 
make all laws necessary and proper for carrying into execu¬ 
tion the powers vested in the general government by the 
Constitution, even if this clause had not been inserted. If 
the Constitution provides for a government, and invests it 
with powers, it follows as an unavoidable inference that the 
legislative department of that government can make the laws 
needful for carrying those powers into execution. 

Mr. Madison says, 1 “ Few parts of the Constitution have 
been assailed with more intemperance than this; yet, on a 
fair investigation of it, as has been elsewhere shown, no part 
can appear more completely invulnerable. Without the sub¬ 
stance of this power, the whole Constitution would be a dead 
letter.” He proceeds to show the folly of attempting a positive 
enumeration of the powers necessary and proper for carrying 
their other powers into effect; that “ the attempt would have 
involved a complete digest of laws on every subject to which 
the Constitution relates ; accommodated, too, not only to the 
existing state of things, but to all the possible changes which 
futurity might produce.” No less chimerical would it be to 
enumerate the powers or means not necessary or proper for 
carrying the general powers into execution. 

“ Had the Constitution been silent on this head, there can 
be no doubt that all the particular powers requisite as means 
of executing the general powers would have resulted to the 
government by unavoidable implication. No axiom is more 
clearly established in law, or in reason, that whenever the 
end is required, the means are authorized. Wherever a gen¬ 
eral power to do a thing is given, every particular power 
necessary for doing it is included.” Thus Mr. Madison. 

Mr. Hamilton uses similar language. 2 “ It may be affirmed 
with perfect confidence that the constitutional operation of 
the government would be precisely the same if these clauses 

* Federalist, No. 33. 


‘ Federalist, No. 44. 


i. vm. is. 


IMPLIED POWERS 


149 


were entirely obliterated, as if they were repeated in every 
article. They are only declaratory of a truth which would 
have resulted by necessary and unavoidable implication from 
the very act of constituting a federal government and vesting 
it with certain specified powers." 

Chief Justice Marshall says : “ A power vested carries with 
it all those incidental powers which are necessary to its com¬ 
plete and efficient execution." This principle has been re¬ 
peatedly sanctioned by the Supreme Court, and has been acted 
on by the general government from 1789 to the present day. 

Judge Story says : “ It would be almost impracticable, if it 
were not useless, to enumerate the various instances in which 
Congress, in the progress of the government, have made use 
of incidental and implied means to execute its powers. They 
are almost infinitely varied in their ramifications and details." 1 

Special Implied Powers.—Nothing is plainer than that the Constitution 
was intended to vest in the general government all the powers which prop¬ 
erly belong to such a government, and so it has been understood from the 
beginning. The language of the Constitution in divers places presupposes 
that Congress could make laws for which no specific authority is given. 
Thus, in Art. I., Sec. 9, it is provided that the importation of slaves should 
not be prohibited till 1808; yet nowhere does the Constitution invest Con¬ 
gress with any authority to prohibit it then. 

In the same section it is declared that “ The privileges of the writ of 
habeas corpus shall not be suspended, unless when in cases of rebellion or 
invasion the public safety may require it.” But where has the Constitu¬ 
tion conferred upon Congress, or any department of the government, any 
distinct power to suspend this writ? 

So, also, “No bill of attainder or ex post facto law shall be passed.” 
Such laws were passed by the British Parliament, and were not unknown 
in the legislation of the American States. Without this restriction, it was 
evidently supposed by the framers of the Constitution that Congress might 
do the same, although there is no clause granting such authority. 

The Exercise of Implied Powers by all Parties—From the 
beginning of the government under the Constitution, laws 

* Story, 8 1268. 


150 


THE CONSTITUTION 


1. vm. 18. 


have been enacted that could be justified only on the doctrine 
of implied powers. And all administrations have recognized 
the same doctrine. Opposition to certain measures has often 
been based upon their alleged unconstitutionality ; but when 
the political party from which the opposition came has itself 
been placed in power, it has not hesitated to deviate quite as 
far from the strict letter of the Constitution. 

Among the acts which are indefensible on the theory of 
specially enumerated powers may be mentioned the purchase 
of Louisiana; the embargo act of 1807 ; grants of lands for 
railroads and canals ; the annexation of Texas ; grants of lands 
for agricultural colleges ; the annexation of Hawaii; and the 
acquisition of Porto Rico and the Philippines. It was con¬ 
tended that the remote location of the Philippines constituted 
a principle distinguishing this case from the purchase of ad¬ 
joining territory like Louisiana or even of distant territory on 
this continent like Alaska ; but the Senate, by its ratification 
of the treaty of Paris (1899) decided that the government has 
the power to acquire even remote territory. (For the differ¬ 
ent methods by which territory may be acquired, see pages 
184, 185). 

The Embargo of 1807 ; Louisiana Purchase. —“ The most 
remarkable powers,” says Judge Story, “ which have been ex¬ 
ercised by the government, as auxiliary and implied powers, 
and which, if any, go to the utmost verge of liberal construc¬ 
tion, are the laying of an unlimited embargo in 1807, and the 
»purchase of Louisiana in 1803 and its subsequent admission 
into the Union as a State. These measures were brought for¬ 
ward, and supported, and carried by the known and avowed 
friends of a strict construction.” 1 “ The friends of the latter 
measure were driven to the adoption of the doctrine that the 
right to acquire territory was incident to national sovereignty ; 
that it was a resulting power, growing out of the aggregate 
powers confided by the Constitution ; that the appropriation 

1 Story, § 1282. 


1. IX. 1. SLAVERY AND THE SLAVE TRADE 151 

might justly be vindicated upon the ground that it was for 
the common defense and general welfare.” 1 

At the same time, it should never be forgotten that the 
Constitution has been made by the nation for the guidance of 
those who, in the three great departments, are charged with 
the duty of carrying on the government. Those powers only 
may be rightfully exercised which are expressly or by impli¬ 
cation found in the Constitution. 

Sec. 9 , Clause I. —The migration or importation of such 
persons as any of the States now existing shall think proper 
to admit, shall not he prohibited by the Congress prior to the 
year one thousand eight hundred and eight, but a tax or duty 
may be imposed on such importation, not exceeding ten dollars 
for each person. 

Slave Trade. —The “persons” here mentioned were slaves. 
The use of the two words migration and importation will be 
noticed ; the one properly applicable to persons, and the other 
to property. The clause permitted the slave trade till 1808. 
As reported by the Committee of Detail, the provision was that 
such importation should not be prohibited; there was no lim¬ 
itation of time. It was provided also in that report that no 
tax or duty should be levied. The tax of ten dollars which 
the Convention finally decided upon was in fact never imposed 
by Congress. At the expiration of the twenty years the fur¬ 
ther importation of slaves was prohibited by an act passed 
March 2d, 1807, to take effect January 1st, 1808. 

When the Constitution was formed, no nation had abolished 
the slave trade. 2 Yet of the thirteen American States, all but 
three had prohibited the importation of slaves. These three 
were North Carolina, South Carolina, and Georgia; and they 
insisted upon a provision in the Constitution for the admission 
of slaves, at least for a limited period. Hence the clause as it 
appears. 

1 Story, § 1286. * Great Britain abolished it March 25th r 1807. Kent, I., 196. 


152 


THE CONSTITUTION 


1. EX. 2. 


Action of Congress as to Slavery.—The following is a 

summary of the action of our government touching slavery 
and the slave trade : 

In 1787 1 the Continental Congress passed an “Ordinance 
for the government of the Territory of the United States 
north-west of the River Ohio,” which provided that.in the 
Territory there should “ be neither slavery nor involuntary 
servitude . . . otherwise than in the punishment of 

crimes.” 

The slave trade to foreign countries was prohibited in 
1794. 2 

The importation of slaves was prohibited in 1807, 3 the law 
to take effect January 1st, 1808. 

In 1820 4 the slave trade was declared to be piracy, to be 
punished with death. 

Slavery was abolished in the District of Columbia by act of 
Congress in 1862, 5 and in the Territories the same year. 6 

The President's first proclamation as to emancipation of 
slaves in the South was issued September 22d, 1862. The 
second proclamation, emancipating them, is dated January 
1st, 1863. The coastwise slave trade was forever prohibited 
by act of July 2d, 1864. 

The Thirteenth Amendment to the Constitution, abolish¬ 
ing slavery throughout the United States and all places 
subject to its jurisdiction, was proposed to the legislatures 
of the States by Congress, February 1st, 1865, and was rati¬ 
fied December 18th, 1865. 

Clause 2.— The privilege of the writ of habeas corpus shall 
not be suspended , unless when in cases of rebellion or invasion 
the public safety may require it. 

The Writ of Habeas Corpus.—A writ is a legal instrument 
or writing issued by a competent authority, commanding the 

1 July 13th. 9 March 22d. » March 2d. 

4 May 15th. 6 April 16th. «June 19th. 


1. IX. 2. THE WRIT OF HABEAS CORPUS 153 

performance or nonperformance of some act by the person to 
whom it is directed. These writs were formerly written in 
Latin, and they are often designated by Some important 
Latin words contained in them. The words habeas corpus 
mean “ you may have the body and the writ is issued by 
the judge having competent authority, commanding some 
officer—a sheriff or marshal—to bring the person held in 
confinement before the judge, that he may inquire into the 
cause of his imprisonment. The officer, after trying to exe¬ 
cute the writ, writes upon the back of the instrument a state¬ 
ment of his performance of the directions contained in it, in 
case he is able to obey it, or the reasons for his failure if he 
has not been able to carry out the directions. He then re¬ 
turns the writ to the court which issued it. This statement 
is the return. 

The object of the writ is to prevent any illegal imprison¬ 
ment or detention, and it is regarded as one of the great bul¬ 
warks of personal liberty. The writ may be granted upon 
the application of the person himself who is restrained of his 
liberty, or on the application of another person in his behalf. 
If, upon judicial inquiry, he is found to be imprisoned or 
confined for sufficient cause, he is still held in confinement; 
but if it appears that he has been arrested illegally, he is set 
at liberty. 

Such writs are issued not only to release from confinement 
those who are unlawfully imprisoned, but to enable parents 
to get control of their children when held in custody by 
others, and to set at liberty sane persons who may be con¬ 
fined under pretense of insanity. 

The application must be accompanied with an affidavit 
that the detention is contrary to law, and setting forth the 
facts in the case. “ Though the writ of habeas corpus is a 
writ of right, it is not a writ of course; and the judge is not 
bound to grant it except for cause shown.” Sometimes from 
the application itself it may be evident to the judge that the 


154 


THE CONSTITUTION 


1. IX. 2. 


arrest was legal, in which case the writ of habeas corpus will 
not be issued. 

By Whom Suspended. —The Constitution does not deter¬ 
mine by whom the privilege of the writ of habeas corpus may 
be suspended, whether by Congress, or the President, or 
both. The more common opinion has been that the power 
belongs to Congress and not to the President. In 1807 a 
bill for the suspension of the writ was lost in the House of 
Kepresentatives after having passed the Senate. 1 The first 
act passed by Congress to suspend the writ was in March, 
1863. It had, however, been previously suspended by Presi¬ 
dent Lincoln (April 27th, 1861) in an order to Lieutenant 
General Scott. This had reference to the military line 
between Philadelphia and Washington. This action of the 
President was in accordance with the opinion of the Attorney 
General, who is his legal adviser. Attorney General Bates 
says : “ If by the phrase, the suspension of the writ of habeas 
corpus , we must understand a repeal of all power to issue the 
writ, then I freely admit that none but Congress can do it. 
Bat if we are at liberty to understand the phrase to mean 
that in case of a great and dangerous rebellion like the pres¬ 
ent, the public safety requires the arrest and confinement of 
persons implicated in that rebellion, I as freely declare the 
opinion that the President has lawful power to suspend the 
privilege of persons arrested under such circumstances, for 
he is specially charged by the Constitution with the ‘ public 
safety/ and he is the sole judge of the emergency which 
requires his prompt action.” 

Most of those who believe that the Constitution gives to Congress the 
power to suspend the writ, would admit that in cases of exigency the Presi¬ 
dent might exercise the power without the authority of Congress. Thus 
Mr. Mulford says : “ Since the legislature can not always act with the im¬ 
mediate energy which may be demanded, and does not act continuously, 

' This was on the occasion of the Burr conspiracy in Mr. Jefferson’s administration. 
The vote in the House was 19 for and 113 against. 


1. IX. 8. 


BILL OF ATTAINDER 


155 


tn its supreme necessity, in the actual or in the imminent peril of the 
nation, it becomes not only the office but the imperative duty of the ex¬ 
ecutive to assert it.” 1 

Action of Congress in 1863. —In the act of Congress passed 
March 3d, 1863, the President was authorized to suspend the 
privilege of the writ in any case throughout the United 
.States, whenever in his judgment the public safety should re- 
>• quire it. The same act contained a clause of indemnity to the 
President and those acting under his orders for any arrest or 
imprisonment during the existence of the rebellion. The sus¬ 
pension of the writ of habeas corpus during the civil war was, 
therefore, by the authority of both the legislative and execu¬ 
tive departments of the government. 

The suspension of the writ does not make it unlawful for 
the judge to issue the writ; but the writ having been issued, 
it is a sufficient return, or answer, to it to say that the privi¬ 
lege of the writ has been suspended. 

Action of Military Officers.—Though the writ of habeas corpus had 
never been suspended either by the Congress or the President, until the 
civil war, it appears to have been suspended by military officers. “ During 
the administration of President Washington, in the Pennsylvania ‘ Whisky 
Insurrection ’ of 1794 and 1795, the military authorities engaged in sup¬ 
pressing it disregarded the writs which were issued by the courts for the 
release of the prisoners who had been captured as insurgents. General 
Wilkinson, under the authority of President Jefferson, during the Burr 
Conspiracy of 1806, suspended the privilege of this writ, as against the 
Superior Court of New Orleans. General Jackson assumed the right to 
refuse obedience to the writ of habeas corpus first in New Orleans, in 
1814, as against the authority of Judge Hall, when the British army was 
approaching that city ; and afterward, in Florida, as against the authority 
of Judge Fromentin.” 2 

Clause 3 .—No bill of attainder or ex post facto law shall 
be passed. 

1 The Nation, page 188. 

Mlalleck’s International Law and Laws of War, page 879, quoted by Hon. A. F. 
Perry. 


156 


THE CONSTITUTION 


1. IX. 4. 


A Bill of Attainder is a legislative act inflicting death or 
other punishment without a judicial trial. If the punish¬ 
ment is less than death, the act is now called in Great 
Britain a bill of pains and penalties. The legislature, in 
passing such a bill, assumes the functions of the judicial 
department of the government; it pronounces sentences and 
inflicts punishments not determined by previous law ; and it 
ordinarily gives the person accused no opportunity of defend¬ 
ing himself. “ Such was the bill of attainder in England, 
and such was it in this country at the time of the adoption of 
the Constitution. By that the whole subject was abolished 
and prohibited entirely and forever.” 1 

An Ex Post Facto Law is one which makes an act crim¬ 
inal which was not criminal when committed. So a law 
would be ex post facto that inflicts a greater punishment 
than the law imposed when the crime was committed. The 
phrase applies only to penal and criminal laws, and not to 
civil proceedings which affect private interests retrospectively. 
A law abolishing imprisonment for debt would not be an ex 
post facto law, though it should apply to past contracts; nor 
would a law rectifying some error, as making deeds of land 
valid which were void through some defect. 

In the case, ex parte Garland, the majority of the Supreme Court held 
that the law of January 24th, 1865, which required a prescribed oath of 
every attorney before he could practice at the bar of a United States 
court, was in violation of this clause, and therefore unconstitutional. 
Judges Chase, Davis, Miller, and Swayne dissented; in their judgment 
the act of Congress referred to was neither a bill of attainder nor an ex 
post facto law. 2 

Clause 4 .—No capitation, or other direct, tax, shall he 
laid, unless in proportion to the census or enumeration here - 
inbefore directed to be taken. 

Capitation Tax.—A capitation tax is a poll tax. The tax 
is levied not according to property but by the head. By 

1 Farrar, page 420. 3 4 Wallace, 334. 


1. IX. 5. 


NO TAX ON EXPORTS 


157 


Article I., Section 2, the Constitution provided that di¬ 
rect taxes should be divided among the States according 
to the population ; and in estimating the population, only 
three fifths of the slaves should be counted. This clause 
would therefore exempt two fifths of the slaves from every 
poll tax levied by the general government. It was to 
secure this exemption, and to prevent the levying of any 
special tax on slaves, that the clause was inserted. No capi¬ 
tation tax has ever been levied by the United States. The 
constitution of Ohio forbids it for State or county purposes. 
The direct tax of 1798 was assessed upon dwelling houses, 
lands, and slaves—upon each slave fifty cents. This was not 
a capitation tax, though in the States where slaves were held, 
a part of the tax was levied upon the capitation principle, so 
far as the slaves were concerned. 

Direct Tax in this clause means a tax on land or slaves or a 
capitation tax. This is what the term meant at the time of 
the adoption of the Constitution, and this definition is still 
given to it by the courts. 

Clause 5 .—No tax or duty shall he laid on articles exported 
from any State. 

Export Duties.—This clause was reported by the Commit¬ 
tee of Detail in connection with the clause relating to the im¬ 
portation of slaves. There was strong opposition in the Con¬ 
vention to giving up the right to tax exports. Several of the 
most influential members, Washington, Madison, Wilson, 
Morris, and others, were in favor of allowing Congress to tax 
exports as well as imports, regarding the power as essential to 
a general government. 

The constitution of the Confederate States contained no such clause of 
prohibition, and heavy export duties were levied by them upon cotton. 

Clause 6 .—No preference shall he given hy any regulation 
of com merce or revenue to the ports of one State over those of 


158 


THE CONSTITUTION 


1. IX. 7. 


another: nor shall vessels bound to , or from , one State be 
obliged to enter , clear , or pay duties in another. 

Entering a Port; Clearing.—To “enter” a port is to re¬ 
port the ship with the cargo to the proper officer, and obtain 
permission to land the cargo. To “clear” is to obtain from 
the proper authorities the necessary papers for sailing from 
the port. While we were colonies under Great Britain, no 
American ship could trade with any port in Europe unless it 
first entered and cleared from a British port. But now a ves¬ 
sel can take her cargo from New York, or Boston, or New 
Orleans, directly to any European port. So a vessel can go 
from any one American port to any other. This latter con¬ 
stitutes the coasting trade, which is greater in amount than 
the foreign trade. 

A former clause (Sec. 8, Clause 1) requires all duties, im¬ 
posts, and excises to be uniform throughout the United States. 
This clause, providing that no preference should be given to 
one State over another in any commercial regulation, is of the 
same character. The different States were to be treated with 
absolute impartiality and equal justice by the general govern¬ 
ment. 

Clause 7 -—No money shall be drawn from the treasury , but 
in consequence of appropriations made by law ; and a regular 
statement and account of the receipts and expenditures of all 
public money shall be published from time to time . 

Appropriations.—The propriety of this clause is obvious. It 
is a limitation on the executive department, and not on the 
legislative. The appropriations are voted annually, the fiscal 
year ending on the 30th of June. These appiopriations are 
made for the different departments of the government with 
much detail, and the duties devolving on the Committee on 
Appropriations are very arduous and responsible. The acts 
making appropriations for the year ending June 30th, 1901, 


1 IX. 8. 


NO TITLE OF NOBILITY 


159 


for instance, fill more than two hundred and thirty pages of the 
United States Statutes at Large. To illustrate the minute¬ 
ness of these appropriations, there are thirty different speci¬ 
fications under the head of “ Library of Congress.” 

Finance Report. —The account of the receipts and expendi¬ 
tures is annually reported to Congress by the Secretary of the 
Treasury. These reports form an important part of the ex¬ 
ecutive documents of the government. 

Clause 8 .—No title of nobility shall be granted by the 
United States: and no person holding any office of profit or 
trust under them, shall, without the consent of the Congress, 
accept of any present, emolument, office, or title , of any kind 
whatever, from any king, prince, or foreign state. 

Titles of Nobility.—“ Nothing need be said to illustrate the 
importance of the prohibition of titles of nobility. This may 
truly be denominated the corner stone of republican govern¬ 
ment ; for so long as they are excluded there can never be 
serious danger that the government will be any other than 
that of the people.” 1 

Presents to Officers. —The second part of this clause is to 
prevent any officer of the government from being influenced 
by a gift of any kind from any foreign prince or state. 
History shows abundant instances of the bribing by one 
government of the officials of another. When presents have 
been sent to officers of our government by a foreign power, 
they have become the property of the government, or Congress 
has authorized those to whom they were sent to receive them. 

This clause applies to military and naval officers as well as 
to civil officers. 

At the second session of the Eleventh Congress an amend¬ 
ment to the Constitution was proposed, two thirds of both 
houses concurring, extending this prohibition to private citi- 


Hamilton, Federalist, No. 84. 


160 


THE CONSTITUTION 


1. X. 1 


zens. 1 But this proposed amendment has never been ratified 
by the requisite number of States. (See page 285.) 

Sec. io, Clause I.— No State shall enter into any treaty, 
alliance, or confederation ; grant letters of marque and re¬ 
prisal ; coin money ; emit bills of credit; make anything but 
gold and silver coin a tender in payment of debts ; pass any 
'bill of attainder, ex post facto law, or law impairing the obli¬ 
gation of contracts, or grant any title of nobility. 

Prohibitions on the States. —This section contains prohibi¬ 
tions and restrictions on the powers of the States. The Con¬ 
stitution is the expression of the will of the nation ; that is, 
of the people of the whole country. In the Constitution, the 
nation has declared that the general government shall ex¬ 
ercise all the powers of national sovereignty, and that the 
States shall have authority in matters of local and municipal 
government. Powers pertaining to national sovereignty are 
expressly denied to the States in this tenth section. Nearly 
all these prohibitions are found also in the Articles of Con¬ 
federation, and some of them are expressed there in terms 
stronger than in the Constitution. 

Sovereignty. —Though we often hear the States spoken of 
as sovereign, they have never been so in fact. They were 
colonies till the 4th of July, 1776, and then the United Col¬ 
onies became a nation, and each colony became a State. From 
that day to this the individual States have exercised none of 
the powers of sovereignty. It is not unfrequently said that 
the States parted with their sovereignty when the Constitu¬ 
tion was formed, implying that till then they possessed sov¬ 
ereign powers. But they could not part with what they never 
possessed. The question is one of fact, and not one of theory. 
The Continental Congress exercised the powers of national 
sovereignty from the day of the Declaration of Independence 

1 U. S. Statutes at Large, II., page 618. 


1. X. l. 


PROHIBITIONS ON THE STATES 


161 


till the present Constitution went into operation. In the 
language of Mr. Jay, afterward Chief Justice of the Supreme 
Court, “ To all general purposes, we have uniformly been one 
people ; each individual citizen everywhere enjoying the same 
national rights, privileges, and protection. As a nation, we 
have made peace and war; as a nation, we have vanquished 
our common enemies ; as a nation, we have formed alliances, 
and made treaties, and entered into various compacts and 
conventions with foreign states.” 1 

Treaties, etc.—The Articles of Confederation forbade the 
States to “send any embassy to, or receive any embassy from, 
or enter into any conference, agreement, alliance, or treaty, 
with any king, prince, or state,” without the consent of the 
United States. In the Constitution the prohibition is ab¬ 
solute. Were each State to have the power to form alliances 
with foreign nations, it would be impossible to preserve the 
peace and harmony of the several parts of the republic. The 
Union would soon be dissolved, and the nation split into frag¬ 
ments. Could the States grant letters of marque, it would be 
in the power of any one to involve the rest in war. All these 
powers, being incident to national sovereignty, are thus wisely 
and necessarily prohibited to the States. The other powers 
prohibited to the States by this clause, however, might be ex¬ 
ercised by inferior governments. 

Coining Money.—The Articles of Confederation allowed 
the States to coin money, but gave to Congress the exclusive 
right to regulate the alloy and value of the coin. The power 
of the States in regard to money was thus a qualified power. 
But the provision of the Constitution, prohibiting the States 
absolutely from coining money, is a manifest improvement on 
the previous system. 

Bills of Credit.—The States are also prohibited from emit¬ 
ting bills of credit. “To constitute a bill of credit, within 
the Constitution, it must be issued by a State, involve the 

i Federalist, No. 8. ; 

A. C—11 


162 


THE CONSTITUTION 


1. X. 1. 


faith of the State, and be designed to circulate as money, on 
the credit of the State, in the ordinary uses of business .” 1 
Such bills may or may not bear interest; they may or may 
not be made a legal tender. Neither of these circumstances 
would affect them as bills of credit. The State of Missouri 
issued loan certificates, bearing interest and redeemable by 
the State, which were made receivable for taxes and debts, 
and by public officers in payment of their salaries. But the 
Supreme Court decided that they were bills of credit, and 
therefore unconstitutional. 2 A State may borrow money and 
issue bonds therefor ; such bonds are not bills of credit. The 
paper currency issued by the Continental Congress, and by the 
several States prior to the adoption of the Constitution, was 
known as bills of credit. 

The evils of the paper money issued by the States after the war of the 
Revolution are strikingly depicted by Mr. Madison. “The loss which 
America has sustained since the peace, from the pestilent effects of paper 
money on the necessary confidence between man and man; on the neces¬ 
sary confidence in the public councils; on the industry and morals of the 
people, and on the character of republican government, constitutes an 
enormous debt against the States chargeable with this unadvised measure, 
which must long remain unsatisfied; or rather, an accumulation of guilt, 
which can be expiated no otherwise than by a voluntary sacrifice on the 
altar of justice, of the power which has been the instrument of it.” 3 

Legal Tender.—The States are also forbidden to make any¬ 
thing but gold and silver coin a legal tender in payment of 
debts. The Constitution virtually places the control of the 
whole subject of money and the currency with the general 
government. The States have, indeed, established banks, 
and authorized them to issue notes for circulation, but it has 
been by sufferance, and not by Constitutional authority. The 
general government, in the establishment of national banks, 
has assumed the exercise of the power which it was manifestly 
the intention of the Constitution it should possess. 4 

1 11 Peters. 257. 2 4 Peters, 410. 

* Federalist., No 44. 4 See pages 113,116,117. 


1. X. 1. 


PROHIBITIONS ON THE STATES 


163 


The States as well as the general government are prohibit- „ 
ed from passing any bills of attainder or ex post facto laws. 
There would be no propriety in allowing such a power to the 
former if prohibited to the latter. Very wisely such laws are 
entirely prohibited. 

Obligation of Contracts. —No State can pass laws impair¬ 
ing the obligation of contracts. The obligation here spoken 
of is legal, not moral. “ The spirit of the provision is this : A 
contract which is legally binding upon the parties at the time 
and place it is entered into by them, shall remain so, any law 
of the States to the contrary notwithstanding.” 1 

Under this clause the States are clearly prohibited from 
passing bankrupt laws impairing the obligation of contracts 
made antecedently to their passage. The Supreme Court has 
decided, however, that the States may pass laws operating 
upon future contracts' between their own citizens. 

State constitutions as well as statutes are within the pro¬ 
hibitions of this clause. 

Whether Congress can pass laws impairing the obligation of contracts, 
except as provided in the Constitution, as in the case of bankrupt laws, 
has been questioned. In a case before the Supreme Court, involving the 
question whether greenbacks could be used to pay debts contracted before 
the passage of the law making them legal tender, Chief Justice Chase 
maintained that Congress could not pass a law impairing the obligation 
of contracts without a constitutional authorization. Also, it is clear that 
contracts are property, and if Congress were to attempt to impair their 
obligation it might be maintained that this would be taking the property 
of the obligee without due process of law. Such deprivation of property 
is forbidden by the Fifth Amendment to the Constitution. 

Legislative Grants. —The term contract is made to include 
grants , which are contracts that have been executed. A 
grant made by a State legislature is irrevocable. Whenever 
a law is in its own nature a contract, and absolute rights have 
become vested under it, a repeal of that law can not divest 
those rights or annihilate or impair the title so acquired. 2 

* Tiffany, page 217. 3 Story, § 1391. 


164 


THE CONSTITUTION 


1. X. 9 


• Charters. —If a charter of a bank, which has been incor¬ 
porated by a State, should prescribe the manner in which 
the bank should be taxed, the State could not subsequently 
alter the mode of taxation, not even if meanwhile the State 
should have adopted a new constitution prescribing the 
manner in which banks should be taxed. 

So a charter of a college is a contract which the legislature 
of a State can not annul or impair. The State of New 
Hampshire attempted to change the charter of Dartmouth 
College, transferring the government of the institution from 
the old charter trustees to new trustees appointed under the 
legislative act. But the action of the legislature was de¬ 
clared by the Supreme Court to be unconstitutional. 

Clause 2. — No State shall , without the consent of the Con¬ 
gress , lay any imposts or duties on imports or exports , except 
what may he absolutely necessary for executing its inspection 
laws: and the net produce of all duties and imposts laid by 
any State on imports or exports , shall be for the use of the 
treasury of the United States; and all such laws shall be 
subject to the revision and control of the Congress. 

Import Duties. —The authority to levy duties on goods im¬ 
ported belongs properly to the general government. The 
exercise of this power by the several States, prior to the 
adoption of the Constitution, was one of the chief causes of 
the overthrow of the Articles of Confederation. The whole 
power is now vested in Congress, and the States are by this 
clause prohibited from laying duties except with the consent, 
of Congress, and the revenue obtained in such case must be 
paid into the treasury of the United States. 

Inspection.—The object of inspection is to secure a certain standard 
of excellence in commodities offered for sale ; so that purchasers may not 
be imposed upon. An inspector is appointed under State law, whose 
duty it is to examine flour, pork, etc., and certify as to its quality. If it 
comes up to the required standard, he stamps or brands the cask or 


1. X. 5. 


PROHIBITIONS ON THE STATES 


165 


package accordingly. Sometimes the inspector is paid by the city which 
appoints him, and sometimes Ins compensation is obtained by means of 
fees. To insure that no State shall levy any duty or impost under the 
form of inspection fees, the net proceeds of such fees are required to be 
paid into the United States treasury. 

A State can not lay duties on imports or exports indirectly. 
Maryland once required all importers of foreign goods, and 
those selling the same in the original package, to take a 
license from the State, for which a fee of fifty dollars was to 
be paid. The Supreme Court decided that the law requiring 
this was unconstitutional, because it virtually levied a duty 
on the articles imported. 

Taxation by States.—The Constitution in no other clause 
refers to taxation of any kind by State authority. But it 
everywhere recognizes the existence of the States as govern¬ 
ments, and thus presupposes their power to levy taxes. 
For the support of its local government a State may tax its 
citizens, but it may not levy duties on imports, save with the 
consent of Congress, or merely for inspection purposes. And 
the Supreme Court has decided that a State can not levy a 
tax that shall in any way obstruct the legislation of the gen¬ 
eral government. Thus a State can not tax United States 
bonds or treasury notes, or a bank chartered by the general 
government, except as provision is made for such State taxa¬ 
tion by Congress; while the United States may levy a tax 
upon State bonds, or banks chartered by the States. €i When 
Congress tax the chartered institutions of the States they tax 
their own constituents; and such taxes must be uniform. 
But when a State taxes an institution created by Congress it 
taxes an instrument of a superior and independent sover¬ 
eignty, not represented in the State legislature.” 1 

Clause 3 .—No State shall, without the consent of Congress, 
lay any duty of tonnage , keep troops or ships of war in time 

1 Story, § 1053. 


166 


THE CONSTITUTION 


a i jl 


of peace, enter into aniy agreement or compact with another 
State, or with a foreign power, or engage m war, unless actu¬ 
ally invaded, or in such imminent danger as will not admit 
of delay. 

Tonnage. —Duties on tonnage are duties on ships. A ship 
that can carry five hundred tons of freight is said to be of 
five hundred tons burden. Where duties are levied upon 
ships, it is in proportion to their capacity, or the amount of 
freight they can carry. If the States are prohibited from 
raising a revenue from goods imported, they should also be 
prohibited from taxing the ships in which the goods are 
brought. 

The Other Prohibitions in this clause refer to matters of 
national sovereignty. The whole control of questions re¬ 
lating to peace and war, treaties, alliances, etc., is placed in 
the general government ; and nothing can be done by the 
States in these matters except under its direction. It has 
been seen that there are implied as well as express prohibi¬ 
tions on the powers of the States. Thus no State can tax 
the bonds issued by the United States. And State statutes 
of limitations and State insolvent laws have no operation 
upon the rights or the contracts of the United States. 

ARTICLE II. 

The Executive Depaktment. 

Sec. I, Clause I. — The executive power shall he vested 
in a President of the United States of America. He shall 
hold his office during the term of four years, and. together 
with the Vice President, chosen for the same term, he elected, 
as follows: 

The Executive. —From the Declaration of Independence 
to the time when the Constitution went into operation, there 
had been no executive department. In the Convention there 


2. I. 1. 


THE EXECUTIVE DEPARTMENT 


16? 


was no difference of opinion as to the propriety and necessity 
of establishing such a department distinct from the legisla¬ 
tive. There was not the same unanimity as to the other 
questions, viz., whether the power should be vested in a 
single person, what should be the term of office, how the ex¬ 
ecutive should be chosen, and whether the same person or 
persons should be eligible to the office a second time. The 
vote in the committee of the whole was “That a national 
executive be instituted, to consist of a single person, to be 
chosen by the national legislature (Congress) for the term of 
seven years.” Subsequently the Committee of Detail reported 
the same clause, with the addition that he should not be 
eligible a second time. Repeated efforts were made in the 
Convention by the delegates from Pennsylvania to change the 
mode of election, so that the executive might be elected by 
the people, or by electors, instead of by Congress ; but only 
two States voted for the change. The clause was then re¬ 
ferred to the committee of one from each State, appointed to 
report on the unfinished parts of the Constitution, who re¬ 
ported it nearly as it was finally adopted. 

A Single Executive. —There is no difference of opinion at 
the present time in regard to the importance of unity in the 
executive. All are agreed that this power must be lodged in 
the hands of one man. To divide responsibility is to intro¬ 
duce feebleness. Every government should be administered 
with firmness and vigor. When laws are enacted they must 
be executed. The maxim that that government is best which 
governs least, is not true. That government is best which is 
so promptly and wisely administered that there will be little 
disposition to violate or evade the law. Republics are often 
affirmed to be feeble of necessity ; but there is no inconsist¬ 
ency between a republican government and great firmness 
and energy of administratipn. 

The Executive Power in the President. —The executive 
power “shall be vested,” that is, is vested. The President 


168 


THE CONSTITUTION 


S. I. 1. 


duly elected has the power by the Constitution, without any 
law conferring it on him. The power is vested in the Presi¬ 
dent alone; not in him and his Cabinet. The executive 
power is not defined in the Constitution. Whatever it is, it 
is vested in the President. The Constitution authorizes him 
to do some things which do not necessarily belong to him in 
the character of executive. Thus he has a qualified negative 
on the legislation of Congress ; with the advice and consent 
of the Senate he can make treaties. But whatever else may 
belong to the executive department, this does, that the Presi¬ 
dent shall see that the laws are executed. 

President Reeligible. —We have seen that the Convention 
that framed the Constitution decided in committee of the 
whole that the term of office of the President should be seven 
years, and that he could not hold the office a second term. 
Both these provisions were subsequently changed ; the term 
of office being made four years, and the restriction to a single 
term being stricken out, so that the people may elect the 
same man to the presidency as many times as they please. 

Presidents Reelected. —Nine Presidents have been reelected 
as their own successors; viz., Washington, Jetferson, Madison, 
Monroe, Jackson, Lincoln, Grant, McKinley, and Roosevelt; 
and one, ex-President Cleveland, was elected for a second 
term after an intervening term. Five Presidents have been 
nominated as their own successors, but not elected; viz., John 
Adams, John Quincy Adams, Van Buren, Cleveland, and 
Harrison; and ex-President Fillmore was the candidate of a 
third party after an intervening term. No President has been 
nominated for a third term, though Cleveland was a second 
time nominated for a second term, having failed of reelection 
as his own successor. 

Arguments for a Single Term.—The question of one presi¬ 
dential term has been much agitated. It is doubtful whether 
the Convention acted wisely in reducing the length of the 
term from seven years to four, and in striking out the clause 


2. L 2. 


ELECTORS 


169 


forbidding a reelection. “ The election of a snpreme execu¬ 
tive magistrate for a whole nation affects so many interests, 
addresses itself so strongly to popular passions, and holds out 
such powerful temptations to ambition, that it necessarily 
becomes a strong trial to public virtue, and even hazardous to 
the public tranquillity. . . . This is the question that is 

eventually to test the goodness, and try the strength of the 
Constitution.” 1 

Besides the excitement attending the election of the executive head of 
a great nation, which is so great that Mr. Paley condemns all elective 
monarchies, and thinks nothing is gained by a popular election worth the 
dissensions, tumults, and interruptions of regular industry with which it 
is inseparably attended, there is the unfavorable influence on the Presi¬ 
dent himself. It is natural that he should desire the approbation of the 
people as manifested by a reelection. But the danger is that this desire 
may tempt him to shape his administration so as to secure a renomination. 

The Confederate constitution provided that the term of President and 
Vice President should be six years, and that the President should not be 
reeligible. 

Clause 2. — Each State shall appoint, in such manner as 
the legislature thereof may direct , a number of electors equal 
to the whole number of senators and representatives to which 
the State may be entitled in the Congress : but no senator or 
representative , or person holding an office of trust or profit 
lender the United States , shall be appointed an elector. 

Modes of Choosing Electors. —The President and Vice 
President are to be chosen by electors, but the manner in 
which the electors are to be appointed is left to the legislature 
of each State. “ The electors were at first chosen in four 
different modes, viz., by joint ballot of the State legislature, 
by a concurrent vote of the two branches of the legislature, 
by the people of the State voting by general ticket, and by 
the people voting in districts. This last mode was evidently 
that which gave the fairest expression to public opinion by 

‘ Kent 1, page 273. 


170 


THE CONSTITUTION 


2. I. 2. 


approaching nearest to a direct vote. But those States which 
adopted it were placed at the disadvantage of being exposed 
to a division of their strength and neutralization of their vote ; 
while the electors chosen by any one of the other methods 
voted in a body on one side or the other, thus making the voice 
of the State decisively felt. This consideration induced the 
leading States of Massachusetts and Virginia, which originally 
adopted the district system, to abandon it in 1800.” 1 

In 1828 more than one third of the States chose their elect¬ 
ors by districts. In South Carolina the choice was made by 
the legislature till 1868. By 1872 the mode by general ticket 
had been adopted in every State. Choice by districts was 
adopted in Michigan in 1891, but abandoned by a repeal of 
the act in 1893. 

Number of Electors.— The Constitution determines the num* 
ber of electors. Whatever may have been the mode of choos¬ 
ing them, whether by the people or the legislature, it has been 
the practice to take one from each Congressional district, and 
two from the State at large. No qualification is required for 
an elector except the negative one, that he shall not hold an 
office of profit or trust under the United States. 

Twelfth Amendment. —The third clause of the original 
Constitution has been abrogated by an amendment which was 
proposed by Congress in December, 1803, and, having been 
ratified by three fourths of the legislatures of the States, 
became valid as a part of the Constitution September 25th, 
1804. The original clause will be found in the note. 2 The 

1 Lanman’s Dictionary of Congress, page 427. 

2 Clause 3 .—The electors shall meet in their respective States, and vote by ballot for 
two persons, of whom one at least shall not be an inhabitant of the same State with 
themselves. And thev shall make a list of all the persons voted for, and of the number 
of votes for each; which list they shall sign and certify, and transmit sealed to the seat 
of the government of the United States, directed to the president of the Senate. The 
president of the Senate shall, in the presence of the Senate and House of Representa¬ 
tives, open all the certificates, and the votes shall then be counted. The person having 
the greatest number of votes shall be the President, if such numoer oe a majority of the 


Amend. 12. PRESIDENTIAL ELECTIONS 171 

Amendment substituted for it is Article XII. of the Amend¬ 
ments, and is as follows : 

The electors shall meet in their respective States, and vote 
by ballot for President and Vice President, one of whom, at 
least, shall not be an inhabitant of the same State with them¬ 
selves ; they shall name in their ballots the person voted for as 
President, and in distinct ballots the person voted for as Vice 
President, and they shall make distinct lists of all persons 
voted for as President, and of all persons voted for as Vice 
President, and of the number of votes for each, which lists 
they shall sign and certify, and transmit sealed to the seat of 
the government of the United States, directed to the president 
of the Senate ;—The president of the Senate shall, in the pres¬ 
ence of the Senate and House of Representatives, open all the 
certificates and the votes shall then be counted;—The person 
having the greatest number of votes for President shall be the 
President, if such number be a majority of the whole number 
of electors appointed ; and if no person have such majority, 
then from the persons having the highest numbers, not exceed¬ 
ing three, on the list of those voted for as President, the House 
of Representatives shall choose immediately, by ballot, the 
President . But in choosing the President , the votes shall be 
taken by States, the representation from each State having one 
vote: a quorum for this purpose shall consist of a member or 
members from two thirds of the States, and a majority of all 
the States shall be necessary to a choice. And if the House 

whole number of electors appointed; and if there be more than one who have such ma¬ 
jority, and have an equal number of votes, then the House of Representatives shall im¬ 
mediately choose by ballot one of them for President; and if no person have a majority, 
then from the five highest on the list the said House shall in like manner choose the 
President. But in choosing the President, the votes shall be taken by States, the repre¬ 
sentation from each State having one vote ; a quorum for this purpose shall consist of a 
member or members from two thirds of the States, and a majority of all the States 6hall 
be nedessary to a choice. In every case, after the choice of the President, the person 
having the greatest number of votes of the electors shall be the Vice President. But if 
there should remain two or more who have equal votes, the Senate shall choose from 
them by ballot the Vice President. 


172 


THE CONSTITUTION 


Amend. 12. 


of Representatives shall not choose a President whenever the 
right of choice shall devolve upon them, before the fourth day 
of March next following, then the Vice President shall act as 
President, as m the case of the death or other constitution¬ 
al disability of the President. The person having the great¬ 
est number of votes as Vice President shall be the Vice Presi¬ 
dent, if such number be a majority of the whole number of 
electors appointed, and if no person have a majority, then 
from the two highest numbers on the list, the Senate shall 
choose the Vice President; a quorum for the purpose shall 
consist of two thirds of the whole number of senators, and a 
majority of the whole number shall be necessary to a choice, 
hut no person constitutionally ineligible to the office of Presi¬ 
dent shall be eligible to that of Vice President of the United 
States. 

Original Clause. —According to the original clause the elect¬ 
ors were to vote for two persons without designating either 
as President or Vice President. The one who received the 
greatest number of votes, provided that number was a major¬ 
ity of the whole number of electors, was to be the President, 
and the one who received the next greatest number was to be 
the Vice President. If two had the same number, being a 
majority, the House of Representatives was to choose one ot 
them for President. If no one had a majority, the House 
of Representatives was to choose a President from the five 
highest. 

The Difference. —The chief points of difference between 
the methods are these two : according to the amendment each 
elector votes for President as such, and also for Vice Presi¬ 
dent ; and if the election goes to the House of Representa¬ 
tives, the choice is from the three highest, instead of from five, 
as was provided in the original article. 

Presidential Elections.—At the first election General Wash¬ 
ington was voted for by each of the electors, 69 in number. 


Amend. 12. 


PRESIDENTIAL ELECTIONS 


173 


Mr. John Adams, who became Vice President, as having 
the next highest number of votes, received only 34; the 
remaining 35 votes having been divided among ten can¬ 
didates. 

At the second election, in 1792, General Washington was 
again elected unanimously, receiving 132 votes. 1 Mr. Adams 
was reelected Vice President, receiving 77 votes, a majority 
of the other 132 votes. 

At the third election, in 1796, Mr. Adams was elected 
President, receiving votes from a small majority of the elect¬ 
ors ; and Mr. Thomas Jefferson became Vice President, since 
he had the next highest number of votes, though he was not 
the choice of a majority of the electors. Adams and Jeffer¬ 
son were of different political parties. 

Fourth Election Goes to the House. —At the fourth election, 
in 1800, Messrs. Jefferson and Burr, who belonged to the same 
political party, had the same number of electoral votes, each 
being voted for by a majority of the electors; and thus the 
choice devolved upon the House of Representatives. There 
were sixteen States, of which eight voted for Jefferson, six for 
Burr, and two were divided. They continued to vote thus 
for thirty-five ballotings, occupying seven days, nominally 
without adjournment. On the thirty-sixth ballot the two 
divided States voted for Jefferson, and so he became Presi¬ 
dent, and Aaron Burr Vice President. It was this difficulty 
that led to the amendment of the Constitution, which amend¬ 
ment was ratified before the fifth election, in 1804. 

House Elects in 1824. —The election of President has de¬ 
volved on the House of Representatives in one other case. 
In the year 1824 Andrew Jackson received 99 electoral 
votes, John Quincy Adams 84, William II. Crawford 41, and 
Henry Clay 37. General Jackson lacked 32 of a majority, 
and the choice devolved on the House of Representatives. 
As the choice must be from the three highest, Mr. Clay could 

* James Monroe, in 1820, received all but one of the electoral votes for President 


174 


THE CONSTITUTION 


Amecd. 12. 


not be voted for. Of the twenty-four States, thirteen voted 
for Mr. Adams, seven for General Jackson, and four for Mr. 
Crawford. John C. Calhoun, the leading candidate for Vice 
President, was elected by the electors, having received 182 
votes, in this case the President and Vice President belonged 
to different political parties. 

Vice President Chosen by Senate. —Once only has the choice 
of Vice President devolved on the Senate. In the fall of 1836 
Martin Van Buren received 170 votes out of 294 for Presi¬ 
dent, and was elected ; Richard M. Johnson failed of an elec¬ 
tion to the vice presidency by one vote, having received 147. 
He was chosen by the Senate. 

Electoral Voting a Form.—Practically the people vote for 
President and Vice President, and it is known who is to be 
the next President long before the electoral colleges convene. 
Thus the voting by the electors has become a mere form, 
though it was not so intended. Various plans have been 
suggested in respect to the mode of electing the President, 
but Congress has never yet proposed an amendment on this 
subject since the Constitution was altered in 1804. By the 
present mode a candidate may have a large majority of the 
electoral votes, and yet be in a decided minority so far as the 
popular vote is concerned. 

Advantages of the Amendment. —By the original article a 
Vice President could not be chosen till the President had 
been chosen ; a failure in the choice for the first office would 
involve therefore a failure in the second also. The amend¬ 
ment avoids this difficulty, by providing that the Senate may 
choose a Vice President if no one has been chosen by the 
electoral vote. If the House of Representatives should fail to 
choose a President by the 4th of March, the Vice President 
chosen by the electors or by the Senate would act as President. 
The amendment also makes it certain that a candidate for the 
presidency shall not be defeated for that office by a candidate 
for the vice presidency ; such an event would have been pos- 


Amend. 12. PRESIDENTIAL ELECTIONS 175 

sible, under the original Constitution, as the result of scatter¬ 
ing votes or the intrigues of a minority. 

Counting the Electoral Votes. —It is usual for the two 
Houses to meet in the House of Representatives, when the 
votes are opened by the president of the Senate, and handed 
to tellers, who count the votes and announce the result. 

Disputed Returns. —In some cases objection has been 
made to the electoral returns from a State on the ground of 
illegality, or a State has sent two conflicting sets of votes. In 
every case but one the majority for one of the candidates has 
been so large that the result would not have been affected on 
which side soever the disputed votes were counted. In 1876 
double returns were received from a number of States, and it 
was known that the election depended on these votes. Un¬ 
fortunately the Constitution does not point out the method 
of deciding such questions. As the Senate was Republican 
and the House Democratic the problem had in it elements of 
danger. The difficulty was met in this way. 

In January, 1877, an act was passed, applicable to that 
election only, that no vote of a State should be rejected ex¬ 
cept by concurrent vote of both Houses, and that all cases 
of two or more sets of votes from the same State should be 
referred to a commission of fifteen, composed equally of 
senators, representatives, and justices of the Supreme Court. 
The cases referred were those of Florida, Oregon, South 
Carolina, and Louisiana. These were all decided in favor of 
the Republicans by a vote of eight to seven, and Rutherford 
B. Hayes was elected by a vote of 185, Samuel J. Tilden 
having 184. 

Act of 1887. —An act was passed in February, 1887, “ to 
provide for and regulate the counting of the votes for Presi¬ 
dent and Vice President, and the decision of questions arising 
thereon.” It provides that the determination by the States, 
under State law, of all contests as to the appointment of 
electors, shall be final. In case, however, of double returns 


176 


THE CONSTITUTION 


e I. a 


being made from a State, or if objections are made to the cer¬ 
tificate of the vote of a State, the law prescribes the action of 
Congress. The method of procedure in counting the votes 
is made more explicit than in previous legislation. 

The first sentence of this amendment, and of the original clause, does 
not forbid the election of both the President and the Vice President from the 
same State If they were so selected, however, the electors of that State 
could not vote for both of them. This provision, as well as other con¬ 
siderations of expediency, would put at a disadvantage any political party 
which should nominate both its candidates from the same State; and no 
party has ever done so 

Clause 3 .—The Congress may determine the time of 
choosing the electors , and the day on which they shall give 
their votes; which day shall be the same throughout the 
United States. 

First Election. —After the Constitution had been ratified 
by the requisite number of States, the Continental Congress 
appointed the first Wednesday in January, in 1789, as the 
day for choosing electors, the first Wednesday in February 
for the electors to assemble and vote for President, and the 
first Wednesday of March as the day on which to commence 
proceedings under the new Constitution. 1 The first Wednes¬ 
day of March was the 4th day of the month, in the year 1789. 

Later Elections. —In 1792 an act was passed requiring 
that the electors be appointed within thirty-four days pre¬ 
ceding the first Wednesday in December; that the electors 
should meet and give their votes on the first Wednesday in 
December; that the votes should be counted on the second 
Wednesday of February; and that the Presidential term of 
four years should commence on the 4th day of March. The 
last two of these provisions remain in force. Since 1845 the 
electors have been chosen on the Tuesday next after the first 


Journal Cont. Cong.. XIII., page 10S. 


a. l. -t 


QUALIFICATION'S OF PRESIDENT 


177 


Monday in November ; and by the act of February, 1887, the 
electors vote on the second Monday of January. 


Each State may provide for filling any vacancy which may occur in 
its college of electors. By the amendment to the Constitution made in 
1804, if the House of Representatives should not elect a President by the 
4th of March, the Vice President becomes President. The 4th of March 
is thus virtually made by the Constitution, as well as by the statute, the 
day when a new presidential term begins. 

The electors in each State make and sign three certificates of all the 
votes given by them, one of which is forwarded by special messenger to 
the president of the Senate at Washington, one is sent to him by mail, 
and one is delivered to the judge of that district in which the electors 
meet 

Clause 4 .—No 'person except a natural-lorn citizen , or a 
citizen of the United States at the time of the adoption of this 
Constitution , shall he eligible to the office of President; neither 
shall any person be eligible to that office who shall not have at¬ 
tained to the age of thirty-five years , and been fourteen years 
a resident within the United States. 

Qualifications of the President. —At the time of framing 
the Constitution, a number of men of foreign birth were 
among the most prominent in the nation, some of them being 
members of the Convention. The exception in favor of those 
who were citizens at the time the Constitution was adopted 
was a mark of respect to them. 

A residence abroad on official duty would not incapacitate 
one for holding the office of President. Mr. Buchanan had 
been minister to England just prior to his election to the 
presidency in 1856. 

Clause 5 .—In case of the removal of the President from 
office , or of his death , resignation , or inability to discharge 
the powers and duties of the said office , the same shall devolve 
on the Vice President, and the Congress may by law provide 
A. c—12 


178 


THE CONSTITUTION 


2, I. 5. 


for the case of removal, death, resignation, or inability, both 
of the President and Vice President, declaring what officer 
shall then act as President, and such officer shall act accord¬ 
ingly, until the disability be removed, or a President shall be 
elected. 

The Vice President. —Until near the close of the Conven¬ 
tion that framed the Constitution, nothing had been said of a 
Vice President. The Senate had been authorized to choose 
its own presiding officer, and in case of the death or re¬ 
moval of the President of the United States, the president of 
the Senate was to become President. The Convention had 
decided that the President should be elected by Congress ; but 
there was difficulty in arranging the details, and the com¬ 
mittee of one from each State finally reported a new plan, 
providing for an election of President by means of electors 
appointed in the several States. This plan seemed to render 
desirable the election of a Vice President, and thus the Con¬ 
stitution made provision for such an officer. 

We have seen that, according to the amendment adopted in 1804, the 
Senate may choose a Vice President immediately, if there has been no 
election by the electors. If, therefore, by possibility the House of Repre¬ 
sentatives, when the election devolves on them, should fail to elect a 
President by the 4th of March, the Vice President would become Presi¬ 
dent. 

Presidential Succession by Law of 1792. —Congress pro¬ 
vided by law, in 1792, 1 that in case of the removal, death, 
resignation, or inability of both President and Vice President 
the president pro tempore of the Senate, and in case there 
were no such president, the speaker of the House of Repre¬ 
sentatives, should act as President until the disability were 
removed or a President were elected. If the Vice President 
becomes President, he holds the office during the remainder 


March 1st. 


2. I. 6. THE PRESIDENTIAL SUCCESSION 179 

of the term for which the President was elected; but the 
president pro tempore of the Senate, or the speaker of the 
House, would act only till a new President could be elected. 

The Law of 1886. —In 1886 1 a law was passed substituting 
for the president pro tempore of the Senate and the speaker 
of the House the members of the Cabinet, in the following 
order: the Secretary of State, Secretary of the Treasury, 
Secretary of War, Attorney-General, Postmaster-General, 
Secretary of the Navy, Secretary of the Interior. But no 
member of the Cabinet can act as President unless he has the 
constitutional qualifications for the presidency. If Congress 
be not in session, or would not by law meet within twenty 
days, a special session is to be called. As by the law of 1792, 
so under this law the officer acting as President would act 
only till a new President could be elected. 

Five Vacancies. —A vacancy in the office of President has 
occurred five times, and in each instance by the death of 
that officer. General William Henry Harrison died April 
4th, 1841, just one month after his inauguration, and was 
succeeded by John Tyler, April 6th. General Zachary 
Taylor died July 9th, 1850, and was succeeded by Millard 
Fillmore, July 10th. Abraham Lincoln was assassinated on 
the night of April 14th, 1865, and was succeeded by Andrew 
Johnson, April 15th. James Abram Garfield died September 
19th, 1881, from a wound by an assassin, and Vice-President 
Chester A. Arthur became President. William McKinley 
died September 14th, 1901, from a wound by an assassin, 
and was succeeded the same day by Vice-President Theodore 
Roosevelt. The case of the removal of both President and 
Vice-President has never occurred. 

Clause 6 .—The President shall , at stated times, receive 
for his services a compensation , which shall neither be in¬ 
creased nor diminished during the period for which he shall 


1 January 19th. 


180 


THE CONSTITUTION 


2. L 7. 


have been elected, and he shall not receive within that period 
any other emolument from the United States, or any of them. 

The Salary of the President was made twenty-five thousand 
dollars a year, and that of the Vice President five thousand 
dollars, by act of Congress September 24th, 1789, and again 
February 18th, 1793. The President’s salary was raised to 
fifty thousand dollars in 1873, and to seventy-five thousand in 
1909. The salary of the Vice President was made eight thou¬ 
sand dollars in 1853, ten thousand March 3d, 1873, eight thou¬ 
sand January 20th, 1874, and twelve thousand February 26th, 
1907. A furnished house is provided for the President. The 
salaries are paid monthly. 

Clause 7 .—Before he enter on the execution of his office, he 
shall take the following oath or affirmation :—“ I do solemnly 
swear (or affirm) that 1 will faithfully execute the office of 
President of the United States, and will, to the best of my 
ability, preserve, protect , and defend the Constitution of the 
United States.” 

The Oath of Office.—The oath is administered to the Presi¬ 
dent by the Chief Justice of the Supreme Court, in connec¬ 
tion with the inauguration ceremonies, which are held at 
noon on the 4th of March. 

After the death of President Harrison, Mr. Tyler took the oath pre¬ 
scribed in the Constitution, although he said that he deemed himself qual¬ 
ified to perform the duties and exercise the powers and office of President 
without any other oath than that which he took as Vice President. The 
same was done by Messrs. Fillmore, Johnson, Arthur, and Roosevelt. It 
is said that the cabinet of President Harrison proposed that Mr. Tyler be 
styled *• Acting President,” but the proposition was declined. The Con¬ 
stitution says the powers and duties of the office u shall devolve on the 
Vice President ” in case of the removal of the President, but that Congress 
shall declare what officer shall “ act as President,” when there is neither 
President nor Vice President. There appears to be no reason, then, for 
using the style “ Acting President” in the case of the Vice President suc¬ 
ceeding to the office. 


«. DL 1. 


THE EXECUTIVE—POWERS 


181 


Sec. 2, Clause I. —The President shall be commander in 
chief of the army and navy of the United States, and of the 
militia of the several States, when called into the actual serv - 
ice of the United States; he may require the opinion, in 
writing, of the principal officer in each of the executive de¬ 
partments, upon any subject relating to the duties of their re¬ 
spective offices, and he shall have power to grant reprieves and 
pardons for offenses against the United States, except in cases 
of impeachment . 

Command of the Army and Navy.— Most writers on the 
Constitution have regarded the authority to command the 
army and navy as necessarily belonging to the executive 
department. This is the opinion of Story and Kent and 
Duer. 

The command of the army and navy is obviously a vast power. It 
involves also the entire government of territory acquired by war, until 
Congress takes control by passing laws for its government. For instance, 
Porto Rico was ruled by President McKinley, either directly or through 
the War Department and the army, for more than a year after Spain gave 
it up to the United States ; and the Philippines were under the same gov¬ 
ernment for a still longer period. 

There has been much discussion as to whether the provisions of the 
Constitution apply at once, of their own force {ex propria vigore ), to new 
territory acquired, or whether the government by President and Congress 
is unlimited thereby until Congress extends the Constitution to the new 
territory. The decisions of the Supreme Court in 1901, concerning the 
Porto Rico tariff, took middle ground, declaring that some parts of the 
Constitution do not apply at once, but intimating that other parts do. 

The Heads of Departments. —The only reference in the 
Constitution to the heads of the executive departments is 
found in this and the following clauses. The language 
implies that such departments would be established, but the 
Constitution neither in Section 8 of Article I., nor elsewhere, 
specifies the power to establish them as one of the powers 
belonging to Congress. The heads of these departments are 


182 


THE CONSTITUTION 


8. H. 1. 


the advisers of the President. Collectively they are called his 
Cabinet. They have frequent meetings at which measures 
are discussed, and in addition their written opinions are given 
to the President whenever he requires them. The opinions 
of the Attorneys-General fill a number of volumes. 

The President, and not the Cabinet, is responsible for the measures of 
the administration ; yet, as heads of departments established by law, the 
members of the Cabinet have duties which can not be neglected. Their 
position may thus become one of no little delicacy. 

Reprieves and Pardons. —A reprieve suspends for a time 
the execution of a sentence, especially when the criminal has 
been sentenced to death. A pardon is a full release from the 
punishment which would otherwise be inflicted. The power 
to reprieve or pardon implies the possible imperfection of 
human justice. Circumstances may come to light after a 
trial which, had they been known before, would have secured 
a different result. This prerogative of mercy is found in all 
civilized governments, and it is properly lodged with the 
executive. Our Constitution gives it to the President, except 
in cases of impeachment. 

When may a Pardon be Granted? —The language of the 
Constitution is that the President shall have power “ to grant 
reprieves and pardons." For the meaning and use of the 
expression “to grant pardons," we are referred to the Eng-j 
lish law, which allowed the king, as the sovereign, to pardon 
before trial as well as after. Was this the intention of the 
framers of our Constitution? Mr. Justice Field, in giving 
the opinion of the Supreme Court in the case of Garland, 
said: “The power thus conferred is unlimited, with the 
exception stated; it extends to every offense known to the 
law, and may be exercised at any time after its commission, 
either before legal proceedings are taken, or during their 
pendency, or after conviction and judgment." 

Mr. Tiffany views the matter differently. “ To pardon or 


2. II. 2. 


THE EXECUTIVE—POWERS 


183 


reprieve a man implies that he has become, in the eye of the 
law, the subject of punishment to be inflicted upon him. It 
implies that the law has pronounced him guilty, and de¬ 
nounced upon him the penalty. The executive, as an officer 
of the law, can know nothing of the guilt or innocence of a 
party, or of his need, of a reprieve or pardon, until his guilt 
has been judicially ascertained. No reprieve or pardon can, 
in law, be granted until there be that from which a reprieve 
is needed, or for which a pardon is demanded.” 1 “There 
may be cases, as in rebellion or civil war, where a large class 
of citizens may need, and public policy may require, an am¬ 
nesty in their behalf. But such exigency addresses itself to 
the legislative , not to the executive department of govern¬ 
ment.” 2 

This seems to have been the view of Congress when, by act 
of July, 1862, it authorized the President to extend par¬ 
don and amnesty by proclamation to those in rebellion 
against the government, with such conditions as he might 
deem expedient. On the 3d of December, 1863, President 
Lincoln issued an amnesty proclamation, referring to this 
action of Congress. Other proclamations were issued by Mr. 
Lincoln and Mr. Johnson prior to the repeal of the section 
authorizing such oilers of amnesty. The latter, however, 
issued proclamations of like character after the repeal—Janu¬ 
ary 19th, 1867—giving the Constitution as his authority, in 
answer to an inquiry made by the Senate. 

The Pardoning Power in the States.— In some of the State 
constitutions the governors are authorized to pardon after 
conviction ; as if before the conviction of the criminal there 
were no legitimate place for pardon. 

Clause 2.— He shall have power , by and with the advice and 
consent of the Senate , to make treaties , provided two thirds of 
the senators present concur ; and he shall nominate , and by 

1 Tiffany, page 336. 9 Ibid, page 338. 


184 


THE CONSTITUTION 


2. II. #- 


and zvith the advice and consent of the Senate, shall appoint 
ambassadors, other public ministers and consuls, judges of 
the Supreme Court, and all other officers of the United States 
whose appointments are not herein otherzuise provided for, and 
which shall be established by lazu: but the Congress may by 
law vest the appointment of such inferior officers as they think 
proper, in the President alone, in the courts of lazv, or in the 
heads of departments. 

“ Advice and Consent.* *—The “ advice and consent” of the 
Senate, both in making treaties and in appointments to office, 
is, in practice, consent rather than advice. The treaty is pre¬ 
pared and then sent to the Senate for its concurrence. A 
nomination is made by the President, and the Senate acts 
upon the question of confirmation. 

Treaties. —A treaty is an agreement or contract between 
two nations. In Great Britain the power to make treaties is 
in the Crown. In a republic the people may place it where 
they choose. The wisdom of giving it to the President and 
Senate will hardly be questioned. To give it to the President 
alone would intrust to him more power than is consistent with 
the nature of our government. It could not well be placed in 
Congress because of the promptness and secrecy often neces¬ 
sary. By requiring the concurrence of two thirds of the Sen¬ 
ate with the President, the Constitution has provided as ample 
a guaranty as could well be required for the maintenance of 
the rights and honor of the country. 

The Treaty Power Limited.— While the power to make treaties is gen¬ 
eral and unrestricted, it is not to be so construed as to destroy the funda¬ 
mental laws of the land. 44 A treaty to change the organization of the gov¬ 
ernment, to annihilate its sovereignty, to overturn its republican form, or 
to deprive it of its constitutional powers, would be void; because it would 
destroy what it was designed merely to fulfill, the will of the people.”' 

Acquisition of Territory.—Cases may arise where a given end may be 
reached either by a treaty or by ordinary legislation. Thus Congress 
> Story, g 1508. 


2. n. 2. 


THE EXECUTIVE—TREATIES 


185 


authorized the admission of the Republic of Texas in either of two modes 
—by treaty, to be negotiated by the executive with that republic; or by 
the acceptance, on the part of Texas, of certain terms specified in the joint 
resolution of the two houses. “ The annexation was made, in fact, by 
the acceptance of the propositions of Congress. So that the treaty was 
made directly with Texas by Congress, and not by the President with the 
advice and consent of two thirds of the members of the Senate, as the 
treaty-making power.” 1 The Hawaiian Islands were annexed by joint 
resolution of Congress, whereas Porto Rico and the Philippines were ac¬ 
quired by treaty. 

Payment of Money Under Treaty —If a treaty made by 
the President and Senate with a foreign power involve the 
payment of money, can Congress exercise any discretion as to 
the appropriation ? This question came up during the ad¬ 
ministration of President Washington, and was debated with 
great earnestness in the House of Representatives. The treaty 
was one made by Mr. Jay with Great Britain, and in some of 
its features was obnoxious. The House by a large majority 
passed a resolution that whenever a treaty required laws to be 
passed to carry it into effect, it had a constitutional right 
to deliberate and determine the propriety or impropriety of 
passing such laws, and to act thereon as the public good 
should require. Shortly after, however, Congress passed a 
law to carry the treaty into effect. 

Opinion of Kent. —Says Chancellor Kent, “ If a treaty be 
the law of the land, it is as much obligatory upon Congress as 
upon any other branch of the government or upon the people 
at large, so long as it continues in force and unrepealed.” 2 

Purchase of Territory. —In the three great cases of the 
purchase of Louisiana, of Florida, and of California, Presi¬ 
dents Jefferson, Monroe, and Polk consulted Congress before¬ 
hand to ascertain its wishes in the matter, thus apparently 
recognizing the authority of the House of Representatives to 
make or refuse the necessary appropriations. 

1 Farrar, page 333. 3 Vol. I., page 156. 


186 


THE CONSTITUTION 


2. H. 2. 


It is probable, however, that the framers of the Constitution did not 
contemplate the purchase of territory as belonging to the treaty-mak¬ 
ing power, and President Jefferson at the time Louisiana was purchased 
admitted that the authority to make the purchase was not given to the gov¬ 
ernment in the Constitution. Prior to the purchase of Alaska, Congress 
was always consulted wherever it was proposed to enlarge our domain; 
but in the cases of the purchase of Alaska and of the Philippines Congress 
was not consulted. These cases seem to establish the principle that the 
treaty-making power covers the acquisition of territory. 

Treaty-making.—In framing a treaty the President acts through the 
Secretary of State, a foreign minister, or a plenipotentiary appointed for 
the purpose. The treaty is signed by the representatives of the two 
nations, and then submitted to the respective governments for their rat¬ 
ification. After the ratifications have been exchanged, the President 
issues his proclamation making the treaty public, u to the end that it 
may be observed with good faith by the United States and the citizens 
thereof.” 

In discussing a treaty, as well as in considering a nomina¬ 
tion, the Senate sit with closed doors. This is called going 
into executive session. Two thirds of the members present 
must concur in the ratification of a treaty, while a majority is 
sufficient to confirm a nomination to office. 

Nominations to Office.—Nominations are sent to the Sen¬ 
ate by the President in writing. The nomination is by the 
President alone. The Senate can confirm the nomination or 
reject it, but it can not make the nomination. The wis¬ 
dom of this mode of appointment is thus stated by Mr. Ham¬ 
ilton : “ The blame of a bad nomination would fall upon the 
President singly and absolutely. The censure of rejecting a 
good one would lie entirely at the door of the Senate, aggra¬ 
vated by the consideration of their having counteracted the 
good intentions of the executive. If an ill appointment 
should be made, the executive for nominating, and the Sen¬ 
ate for approving, would participate, though in different de¬ 
grees, in the opprobrium and disgrace.” 1 


Federalist, No. 77. 


2. II. 2. 


THE EXECUTIVE—APPOINTMENTS 


187 


Appointment of Inferior Officers. —The Constitution pro¬ 
vides that ambassadors, other public ministers and consuls, 
and judges of the Supreme Court, must be appointed by the 
President and Senate ; but such “ inferior officers " as Con¬ 
gress may designate, may be appointed by the President alone, 
by the courts, or by the heads of departments. It has not 
been determined who are, or who are not, “inferior officers”; 
but it may be considered settled that the heads of departments 
do not belong to this class. If Congress does not vest the ap¬ 
pointment of any officer in the President alone, in the courts, 
or in the head of a department, then, as a matter of course, 
the President and Senate appoint, no matter how insignificant 
the office may be. 

The appointment of u inferior officers ” is not a judicial duty in its na¬ 
ture. It is the only nonjudicial duty enjoined by the Constitution upon 
the courts of the United States. The power to designate officers to be ap¬ 
pointed by the courts has been very sparingly exercised by Congress. This 
is as it should be. The character of courts should not be compromised in 
the public confidence by such controversies as partisan or unpopular ap¬ 
pointments tend to provoke. The courts hold the most sacred trusts of 
any of the three departments of our government, and it is essential to the 
successful discharge of their functions that they shall enjoy the confidence 
of the citizens upon whose rights they are to pass judicially. To this end 
they should be relieved of all matters tending to arouse partisan feeling, 
which is prolific of suspicion. The fundamental division of the executive, 
judicial, and legislative functions also requires that the courts do as little 
of this non judicial duty as possible. 

The heads of departments, however, have been intrusted with such ap¬ 
pointments to a very large extent. Formerly, the Postmaster-General 
could appoint and remove all deputy postmasters. This gave him an 
enormous patronage, which was continually increasing. But the Thirty- 
seventh Congress, at its third session, enacted that the Postmaster-General 
should appoint those deputies only whose compensation is less than one 
thousand dollars a year, all others being appointed by the President. 

Removal from Office. —While the Constitution makes pro¬ 
vision for appointment to office, it says nothing in regard to 
removal from office. At the time the Constitution was under 


188 


THE CONSTITUTION 


2. H. 2. 


discussion in the States, its friends spoke of the consent of the 
Senate as no less necessary for the removal of an officer than 
for his appointment. 1 But in the First Congress the question 
came up in the House of Representatives, and was discussed 
at great length. In a bill establishing a Department of For¬ 
eign Affairs—now called the Department of State—it was 
provided that the Secretary might be removed by the Presi- 
* dent. The debate occurred on a motion to strike out this 
provision. 

The Two Views. —It was maintained on the one side that 
the power to appoint and the power to remove must go to¬ 
gether ; if the President could appoint only with the consent 
of the Senate, its consent must also be necessary to remove. 
On the other side it was held that appointing to office and re¬ 
moving therefrom were executive acts. If the Constitution 
had not associated the Senate with the President in the mat¬ 
ter of appointments, Congress could not have given it that 
power; and as the Constitution had not conferred upon the 
Senate the power to unite with the President in removal, 
Congress was not authorized to associate it with the Presi¬ 
dent in removing from office. 2 The bill, with the provision 
authorizing the President to remove from office, finally passed 
the House of Representatives by a vote of twenty-nine to 
twenty-two, and the Senate by a majority of two. How strong 
i was the opposition to giving such power to the President ap¬ 
pears from the language of Mr. Sumter, of South Carolina, 
who said : “ This bill appears, to my mind, so subversive of 

the Constitution, and in its consequences so destructive of the 
liberties of the people, that I can not let it pass without 
expressing my detestation of the principle it involves.” 3 

Language of Story. —“ That the final decision of this ques¬ 
tion in favor of the executive power of removal was greatly 

1 “ The consent of that body wonld be necessary to displace as well as to appoint.”— 
Federalist, No. 77. 

5 Annals of Congress, I., page 463. 


3 Ibid, page 691. 


2. XL 2. 


THE EXECUTIVE—REMOVALS 


189 


influenced by the exalted character of the President then in 
office, was asserted at the time, and has always been believed , 
yet the doctrine was opposed, as well as supported, by the 
highest talents and patriotism of the country. The public, 
however, acquiesced in the decision; and it constitutes, per¬ 
haps, the most extraordinary case in the history of the gov¬ 
ernment of a power conferred by implication on the executive 
by the assent of a bare majority of Congress, which has not 
been questioned on many other occasions." 1 

Early Removals Few. —For forty years after the adoption 
of the Constitution there were very few removals from office, 
except as a public necessity to secure greater efficiency in the 
discharge of official duty. Such, unquestionably, was the 
expectation when the Constitution was formed. Mr. Madi¬ 
son, in the debate referred to above, used the following lan¬ 
guage : “l contend that the wanton removal of meritorious 
officers would subject him (the President) to impeachment 
and removal from his own high trust." 2 

Removals under Jackson. —But, although for many years 
men were appointed to office for their fitness, a change had 
taken place before the first half century had elapsed. In 
1835, during the second term of General Jackson's adminis¬ 
tration, a committee of the Senate, Mr. Calhoun, chairman, 
appointed to investigate the subject of “ executive patronage," 
used the following language in its report: “ It is easy to 

see that the certain, direct, and inevitable tendency of this 
practice is to convert the entire body of those in office into cor¬ 
rupt and supple instruments of power, and to raise up a host 
of hungry, greedy, and subservient partisans, ready for every 
service, however base and corrupt. Were a premium offered 
for the best means of extending to the utmost the power of 
patronage ; to destroy the love of country and substitute a 
spirit of subserviency and man-worship ; to encourage vice 
and discourage virtue ; and, in a word, to prepare for the 

1 Story, § 1543. » Annals of Congress, I., page 407. 


190 


THE CONSTITUTION 


2. H. 2. 


subversion of liberty and the establishment of despotism, no 
scheme more perfect could be devised.” 1 

Act of 1866. —Although bills had been introduced into Con¬ 
gress to limit the President’s power of removal, no law to that 
effect was passed until 1866. In July of that year it was en¬ 
acted that “ No officer in the military or naval service shall, 
in time of peace, be dismissed from service except upon and 
in pursuance of the sentence of a court martial to that effect, 
or in commutation thereof.” This was under the administra¬ 
tion of President Andrew Johnson. 

Act of 1867 on Tenure of Office.— In March, 1867, an 
“ Act regulating the tenure of civil offices ” was passed, which 
provided that the President might suspend an officer during 
a recess of the Senate, reporting the same with the reasons 
for it to the Senate within twenty days after their assem¬ 
bling ; if the Senate should concur in the removal, another 
person might be appointed. But if the Senate should not 
concur, the suspended officer was to resume his duties. This 
bill was vetoed by President Johnson, but passed over his 
veto by a large majority in each house. It was chiefly for 
violating the provisions of this act in removing Secretary 
Stanton after the Senate had refused to concur in his suspen¬ 
sion, that the House of Representatives brought articles of 
impeachment against the President. 

Act of 1869 .—This act was modified by act of April 5th, 1869, repealing 
the clause requiring the President to report to the Senate the reasons for 
suspending an officer, and the clause providing that the suspended officer 
might resume his duties if the reasons for suspension were not satisfactory 
to the Senate. Practically, the President might remove an officer by nomi-l 
nating one to succeed him; and should the Senate fail to confirm the nom¬ 
ination the President could name another person. 

Thus, after more than three quarters of a century, the 
legislative construction given to the Constitution in 1789 was 

1 Senate Doc., 2d Sees., 23d Cong., vol. 3, No. 109. 


2. II. 2. 


THE EXECUTIVE—CIVIL SERVICE 


191 


reversed in 1867. In each case the action of Congress was 
doubtless largely influenced by their estimate of the character 
of the executive. The question has never yet been the subject 
of judicial construction. 

The repeal in 1887 of the act of 1867 places this subject 
where it was left in 1789. 

The frequent changes in office, and the appointment of men 
often sadly deficient in intellectual and moral qualifications, 
form one of the sources of official corruption. The subject 
of “ Civil Service Reform ” has been largely discussed, and 
various plans have been suggested to remedy existing evils. 
Three things have been affirmed to be requisite in order to 
bring about a reform : a competitive examination of all can¬ 
didates for subordinate offices; promotion to higher grades 
on the principle of service and desert; and a tenure of office 
during good behavior, or for a term of years. 

The Civil Service Act of 1883 .—In 1883 was passed “ An 
Act to regulate and improve the civil service of the United 
States.” Something had been done in 1853 and 1855, and 
President Grant introduced competitive examination, but the 
appropriations were soon discontinued. The law of 1883, 
known as the Pendleton bill, provides for competitive exam¬ 
ination as the means of selecting appointees to many thousand 
positions in the public service. No officers are included 
whose appointment needs the confirmation of the Senate. 

The Eight Rules. —In accordance with the Act of 1883 the 
President appoints by and with the advice and consent of the 
Senate a United States Civil Service Commission of three per¬ 
sons, not more than two of whom are of the same political 
party. The commission aids the President in preparing rules 
which provide and declare ( 1 ) for competitive examinations 
of applicants for positions in the public service classified 
under this law ; ( 2 ) that all the positions so classified shall be 
filled from among those graded highest as the results of the 
competitive examinations; (3) for the apportionment of the 


192 


THE CONSTITUTION 


s. n. 2. 


appointments among the several States and Territories and 
the District of Columbia, on the basis of population (each 
applicant is required to file a statement under oath of his 
residence); (4) for a period of probation before permanent 
appointment; (5) that no appointee shall be required to con¬ 
tribute to any political fund or to render any political service ; 
(6) that no appointee has any right to use his official authority 
or influence to coerce the political action of any one ; (7) for 
holding noncompetitive examinations where competent per¬ 
sons do not compete ; (8) that the appointing power shall 
notify the commission of the selection of applicants from 
those examined, of their residences, of the rejection of any 
after probation, and of transfers, resignations, and removals. 
The commission keeps a record of these facts. These are the 
eight fundamental rules of the Civil Service. Any excep¬ 
tions to them are required to be specially made or stated by 
the commission in its annual report. 

The commission, subject to rules made by the President, has control of 
the examinations. It may investigate the enforcement of the law and re¬ 
port upon the same. It must make an annual report on its own action, 
the rules adopted, etc., to the President and Congress. 

Examiners.—The commission chooses boards of examiners at Washing¬ 
ton and at various places in the States and Territories. Where there are 
persons to be examined the examinations are held not less than twice a 
year. Each board of examiners consists of not less than three persons in 
the public service. The various boards are assisted in this work of con¬ 
ducting examinations by a chief examiner whose principal duty is to see 
that they act justly. The chief examiner receives a salary of $3,000 per 
year, and the commissioners $4,000 each. Frauds and misbehavior in the 
conduct of the examinations are severely punished as misdemeanors. 

The Classified Service.—The Secretary of the Treasury is required to 
classify the employees in every customs district in which they number fifty 
or over. The Postmaster-General is required to do the same in any post 
office of fifty or more employees. They are also required to extend the 
classification of the service in their respective departments on direction of 
the President, and the President may direct the classification of the other 
departments by the heads thereof. 


2. II. 8 . THE EXECUTIVE—FILLING VACANCIES 193 

Not more than two members of one family can be appointed to the clas¬ 
sified service. No recommendation of an applicant by a senator or repre¬ 
sentative, except as to the character or residence of the applicant, can be 
received by the examining board. No congressman or member elect, no 
officer of the United States, and no person in the public service, can be 
connected in any way with the solicitation or receipt of a subscription for 
a political purpose from any officer or employee. The receipt of political 
contributions in United States buildings or grounds is prohibited. 

Extension of the Classification. —This law to be practical 
contemplated and required the formulation and adoption of 
rules relating to details and to the multifarious grades and 
classes of employees in the public service. President Arthur 
made some orders during the latter part of his administration. 
President Cleveland extended the application of the law by 
executive orders and perfected its operation by promulgating 
rules. The same may be said of President Harrison, President 
B-oosevelt, and other Presidents. The number of civil service 
positions now filled on the basis of competitive examinations 
is over 292,000, or more than half of all positions in the civil 
service. 

Clause 3.— The President shall have power to fill up all 
vacancies that may happen during the recess of the Senate , 
by granting commissions which shall expire at the end of their 
next session . 

Commissions. —When an appointment has been made in 
the usual mode, that is, the President having nominated and 
the Senate having confirmed, the commission is not made out 
till the Senate has signified its concurrence. If the per¬ 
son nominated by the President is rejected by the Senate, of 
course no commission is issued. But when a vacancy is filled 
in the recess of the Senate, the President grants a commis¬ 
sion, which continues in force only to the end of its next 
session. If the President nominates to the Senate one whom 
he has thus appointed and commissioned, and the Senate 
A. C.—13 


194 


THE CONSTITUTION 


2. H. 3. 


confirms the nomination, a new commission is issued, and if 
a bond has been given under the first appointment, a new one 
is required. 

Washington’s View of a “ Vacancy.” —Some have held 
that the first appointment to a new office can not be made 
during the recess of the Senate, as strictly, they say, no va¬ 
cancy has happened in that case. President Washington did 
not so interpret the words. In May, 1796, the office of sur¬ 
veyor general was created by law. In October, during the 
recess of the Senate, the President appointed Rufus Putnam 
to the office, the language of the commission being, “ Whereas, 
a vacancy exists in the office of surveyor general,” etc. When 
the Senate convened he nominated General Putnam and the 
Senate confirmed him. 

Suppose a vacancy had been filled by the President in the 
recess of the Senate, and the officer thus appointed should be 
nominated to the Senate at its next session and be rejected ; 
could the President, after the adjournment of the Senate, re¬ 
appoint the same person ? Would this be a vacancy ” in the 
meaning of the Constitution ? If the Senate has rejected an 
officer, the President should not appoint him to the same office. 
The consent of the Senate to an appointment is clearly re¬ 
quired by the Constitution, and that instrument contemplates 
action by the President alone only when there is no oppor¬ 
tunity to consult the Senate. 

If the Senate takes no action upon a nomination, the President, whose 
duty it is to see that the laws are executed, must make the appointment 
himself. Such a case occurred under the administration of President J. 
Q. Adams. President Monroe made a nomination which was rejected, 
and after the expiration of the session filled the vacancy by an appoint¬ 
ment. President Jackson nominated a person whom the Senate rejected, 
and he subsequently renewed the nomination of the same person. The 
Senate laid the nomination on the table, and adjourned without taking 
further action on the subject. After the adjournment of the Senate, the 
President appointed the man. It would have been better if the Senate had 
acted upon the nomination. President Cleveland nominated one who had 


2 . ni. 


THE EXECUTIVE—MESSAGES 


195 


been already rejected, and the Senate rejected him again. This led to 
the nomination of another man. 

Section 3 .—He shall from time to time give to the Congress 
information of the state of the Union , and recommend to their 
consideration such measures as he shall judge necessary and 
expedient; he may, on extraordinary occasions, convene both 
Houses, or either of them, and in case of disagreement between 
them with respect to the time of adjournment, he may adjourn 
them to such time as he shall think proper ; he shall receive 
ambassadors and other public ministers; he shall take care 
that the laws be faithfully executed, and shall commission all 
the officers of the United States. 

Presidents Message.—It is customary for the President, 
at the beginning of each regular session, to send a message to 
Congress, which contains a summary of the reports from the 
heads of departments, and a general account of the opera¬ 
tions of the government for the year, with such suggestions 
as he may deem expedient. Accompanying the message are 
the full reports of the various departments, and documents 
containing detailed information as to every branch of the 
government. The “ Message and Documents” and “ Exec¬ 
utive Documents” fill annually a number of octavo volumes. 
The President also sends special messages from time to time, 
recommending such measures of legislation as he thinks the 
interests of the country require, or containing information 
requested by Congress. 

Delivery of the Message.—President Washington deliv¬ 
ered his first message to both houses assembled in the Senate 
Chamber. He continued to deliver his messages in person at 
the opening of each session of Congress, during the eight 
years of his administration, and his example was followed by 
Mr. Adams. Each house appointed a committee to prepare 
a reply, which, when adopted by the house, was presented to 
the President. This was in accordance with the custom of 


196 


THE CONSTITUTION 


2. III. 


Great Britain and other constitutional governments. Mr. 
Jefferson, however, preferred to send his message, to be read 
to each house by its clerk. There was no expectation of an 
answer. This custom was followed until 1913 when President 
Wilson revived the practice of delivering messages in person. 

Congress Convened by the President.—The authority given to the 
President to convene Congress has been used on a number of occasions. 
President Adams called an extraordinary session for May 15th, 1797, on 
account of the difficulties with France; President Jefferson, October 17th, 
1803, because of the purchase of Louisiana and difficulties with Spain; 
President Madison, May 22d, 1809, and again May 24th, 1813, both be¬ 
cause of difficulties with Great Britain ; President Van Buren, September 
4th, 1837, to consider the financial condition of the country; President Har¬ 
rison, May 31st, 1841, 1 for the same purpose; President Pierce, August 
21st, 1856, because of the Kansas troubles; President Lincoln, July 4th, 
1861, on account of the war in the South ; President Hayes, October 
15th, 1877, for want of an appropriation for the army, and again March 
18th, 1879, for the failure to pass the appropriation bills; President 
Cleveland, August 7th, 1894, to repeal the Sherman Act; President 
McKinley, March 15th, 1897, to pass a revenue bill; President Roosevelt, 
November 9th, 1903, to approve a treaty with Cuba; President Taft, 
March 15th, 1909, to revise the tariff, and April 4th, 1911, to consider reci¬ 
procity with Canada ; President Wilson, April 7,1913, to revise the tariff. 

The House of Representatives has never been convened alone, but the 
Senate has often been, for executive business. 

The two houses have almost always agreed promptly in regard to the time 
of adjournment, and the President has never adjourned them. In Great 
Britain the sovereign may at any time prorogue or dissolve Parliament. 

Receiving Ambassadors. —The President receives ambas¬ 
sadors and other public ministers. Diplomatic intercourse 
with other nations is carried on through the executive depart¬ 
ment. Instructions to our foreign ministers, though bearing 
the signature of the Secretary of State, are always in the name 
and by the order of the President. To receive an ambassador 
or other public minister is to recognize the country from 
which he comes as belonging to the commonwealth of nations. 

1 The proclamation was issued March 17th, and President Harrison died April 4th. 


2. in. THE EXECUTIVE—EXECUTION OF LAWS 197 

The Southern Confederacy made great efforts to secure such 
recognition from Great Britain and France during the civil 
war. 

The power to receive involves the power to refuse to receive, or to re¬ 
ject and dismiss. This may be done for reasons pertaining to the min¬ 
ister himself, as in the case of M. Genet, the French minister whom Pres¬ 
ident Washington requested France to recall in 1793; or on account of 
the relations of the two governments. 1 

Execution of the Laws.— The President “ shall take care 
that the laws be faithfully executed, and shall commission all 
the officers of the United States." To see that the laws are ex¬ 
ecuted is the great duty of the President. He is not to make 
the laws, or repeal them, save as the Constitution gives him 
a qualified negative in their enactment, but to take care that 
the laws are duly enforced. When the meaning of a law is 
judicially called in question, it is not the province of the 
President to decide as to the true meaning and intent of the 
statute ; this belongs to the courts. He may differ from the 
Supreme Court as to the interpretation of a law or a clause 
of the Constitution, or he may think a statute unwise or in¬ 
expedient ; still, whatever has been enacted in accordance with 
the forms prescribed by the Constitution must be executed in 
good faith by the President. For this purpose he is clothed 
with great power ; the army and navy are under his orders. 
Either directly or indirectly all executive offices are filled by 
men of his selection. It is his duty, therefore, to see that 
only honest and capable men are appointed. 

Use of the Army to Enforce Laws.—The question of the power of the 
President of the United States to employ the regular army in case of do¬ 
mestic disturbance became a subject of controversy in 1894. In that 
year, a great strike of railway employees was declared. As a result of 

* Other ministers have been recalled at the request of our government, viz., Mr. 
Jackson, the British minister, in 1809; M. Poussin, French, 1849; Sir John Crampton, 
British, 1866; M. Catacazy, Russian, 1872; Lord Sackville, British, 1888; Dr. Dumba, 
Austrian, 1916. 


198 


THE CONSTITUTION 


2. TV 


this some rioting occurred in railroad yards at Chicago. President Cleve 
land directed General Miles, who was then commanding at Fort Sheridan, 
to use the troops of his command to preserve order, suppress rioting, and 
protect property. Governor Altgeld of Illinois protested against the em¬ 
ployment of federal troops as an unconstitutional invasion of the author¬ 
ity of the State of Illinois by the national government. An altercation by 
telegraph and mail followed between these two executives. The Presi¬ 
dent justified his course on the ground of protecting the United States 
mails and interstate commerce. The President undoubtedly has the 
power to protect the United States mail and United States property re¬ 
gardless of any call or protest from the executive of the State in which 
the disorder arises. 

Section 4 .—The President, Vice President, and all civil 
officers of the United States, shall be removed from office on 
impeachment for, and conviction of, treason, bribery, or other 
high crimes and misdemeanors. 

Impeachment.—The other instances in which impeachments are referred 
to in the Constitution are these : The House of Representatives shall have 
the sole power of impeachment; The Senate shall have the sole power to 
try impeachments; When the President of the United States is tried, the 
Chief Justice shall preside; In trials for impeachments, the Senate shall 
be on oath or affirmation, and the concurrence of two thirds shall be nec¬ 
essary for conviction; Judgment shall not extend further than to removal 
from office and disqualification to hold and enjoy any office of honor, trust, 
or profit under the United States; The party convicted may also be tried 
and punished according to law; The President has power to grant re¬ 
prieves and pardons for offenses against the United States, except in cases 
jof impeachment; The trial of all crimes, except in cases of impeachment, 
shall be by jury. 

Who may be Impeached.— While it is clear that the House 
of Representatives only can prefer articles of impeachment 
and the Senate only can try impeachments, it is not clear who 
may be impeached. Section 4 prescribes a minimum punish¬ 
ment for all “ civil officers ” on conviction, but the Consti- 
tution nowhere defines “ civil officers,” nor does it say that 
others are not liable to impeachment. The term civil is here 
supposed to be used in distinction from military and naval. 


% rv. 


IMPEACHMENTS 


199 


Some understand that members of Congress are not included 
under the designation “ civil officers,” as Section 3, Article 
11., provides that the President “ shall commission all the 
officers of the United States.” As members of Congress are 
not commissioned by the President it is inferred that they are 
not “ officers ” in the sense of the Constitution. 

Senator Blount.— Articles of impeachment were brought against Wil¬ 
liam Blount, United States senator from Tennessee, in 1797. The day 
after the resolution to impeach passed the House, Mr. Blount was ex¬ 
pelled from the Senate, by a vote of twenty-five to one. Action, how¬ 
ever, was taken by "both houses for going on with the impeachment. Ar¬ 
ticles of impeachment were agreed to January 29th, 1798, and the Senate 
summoned Mr. Blount to appear and answer in the December following. 
At that time the Senate formed itself into a court, and counsel for the 
defendant appeared and filed a plea that the Senate could not impeach one 
who was not then a senator , and who was not an officer of the United 
States when the offenses charged were committed. The question of juris¬ 
diction was then argued, and the court decided,’ fourteen to eleven, that 
it had no jurisdiction, and so the case ended. The decision is sup* 
posed to have been on the ground that a senator is not a “civil officer” 
of the United States. 

It appears that all “civil officers” may be impeached for 
“high crimes and misdemeanors,” and, if convicted, they 
shall be removed from office, and may be disqualified for any 
office under the government. It does not appear that they 
may not be impeached for other and lesser offenses, and pun¬ 
ished in the same manner, or otherwise, not exceeding that. 

“ It was the opinion of the framers and early administrators of our gov' 
ernment that all the civil officers were impeachable for minor malfeasances 
in office, not amounting to high crimes or misdemeanors at law, and pun¬ 
ishable in any manner not exceeding removal from, and disqualification 
for, office.” 3 Mr. Madison’s language in regard to removal from office 
has already been quoted: “ The wanton removal of meritorious officers 
would subject him (the President) to impeachment and removal from his 
high trust.” 

i Annals of Congress, 5th Congress. 3 Farrar, page 436. 


200 


THE CONSTITUTION 


2. IV. 


Cases of Impeachment.—Besides the case of Senator Blount, 
there have been seven instances of impeachment. The first was 
that of Judge John Pickering, of the District Court of New 
Hampshire, in March, 1803. The second was that of Judge 
Samuel Chase, of the Supreme Court, in March, 1804. James 
H. Peck, District Judge of Missouri, was impeached in April, 
1830; West H. Humphries, District Judge of Tennessee, in 
May, 1862 ; Andrew Johnson, President of the United States, 
in February, 1868; William W. Belknap, Secretary of War, 
in March, 1876; Charles Swayne, District Judge of Northern 
Florida, in January, 1905 ; and Robert W. Archbald, Associate 
Judge, Commerce Court, in July, 1912. 

The charge against Senator Blount was an attempt to carry into effect a 
hostile expedition in favor of the British against the Spanish possessions 
in Florida and Louisiana, and to enlist some Indian tribes in the same. 

Judge Pickering was charged with great irregularities on the bench, as 
well as gross intemperance. He was undoubtedly insane at the time he 
was impeached, and did not appear in person or by counsel. The deci¬ 
sion, on March 12th, 1804, was that he was guilty, by vote of nineteen to 
seven. By a vote of twenty to six he was removed from office. 

Judge Chase was charged with improper conduct on the bench, as man¬ 
ifesting partiality, injustice, and oppression. There were eight articles of 
impeachment, on two of which eighteen Senators voted “guilty,” and 
sixteen “not guilty ” ; on the other six articles the majority voted “ not 
guilty.” He was, therefore, acquitted on every article. John Randolph 
was the leading manager on the part of the House to conduct the case. 

Judge Peck was impeached for an abuse of his judicial power in pun¬ 
ishing Mr. L. E. Lawless, an attorney, for contempt. The offense of Mr. 
Lawless was the publishing in a newspaper of a criticism on a decision by 
Judge Peck, and he was punished by imprisonment for twenty-four hours, 
and suspension from the bar for eighteen months. The decision was in 
favor of Judge Peck, twenty-one Senators voting “guilty,” and twenty- 
two “not guilty.” Mr. James Buchanan was the leading manager. 

Judge Humphries was impeached for “aiding the rebellion, for illtreat- 
ing loyal men, confiscating their property, ” etc. The Senate voted “guilty ” 
on each one of the seven articles, and he was removed from office, and 
disqualified from holding any office of honor, trust, or profit, under the 
United States. Mr. John A. Bingham was the chairman of the managers. 




8. I. 


THE JUDICIARY 


201 


President Johnson was impeached for removing Secretary Stanton from 
office in alleged violation of an act regulating the terms of certain civil 
officers, and for affirming that the Thirty-ninth Congress was no Congress, 
etc., etc. The President had suspended the Secretary in August, 1867, 
but the Senate voted in January, 1868, not to concur in the suspension. 
In February the Secretary, who had resumed office, was removed by the 
President. Three days afterward the President was impeached. The trial 
started March 4th, and ended May 26th. Thirty-five Senators voted 
“ guilty ” and nineteen “ not guilty,” the result being an acquittal. 

Secretary Belknap was impeached for receiving money for an appoint¬ 
ment to the post of trader at Fort Sill. Though he had resigned before 
the House took action, the Senate decided, thirty-seven to twenty-nine, 
that it had jurisdiction. The trial resulted in an acquittal, August 1st, 
1876, thirty-seven voting “guilty ” and twenty-five “ not guilty.” 

Judge Swayne was impeached for irregularities in money matters, for 
not residing in his district as required by law, and fcr abuse of judicial 
power. The decision, February 27th, 1905, was in his favor, a majority 
of the Senators voting “not guilty.” 

Judge Archbald was impeached for using his office to obtain certain 
concessions from railroads. The trial resulted in conviction, January 13, 
1913. He was removed from office and forever disqualified from holding 
any office under the United States. 


ARTICLE IH. 

The Judiciary. 

Section I .—The judicial power of the United States 
shall he vested in one Supreme Court , and in such inferior 
courts as the Congress may from time to time ordain and 
establish . The judges , both of the Supreme and inferior 
courts , shall hold their offices during good behavior , and shall , 
at stated times , receive for their services a compensation 
which shall not be diminished during their continuance in 
office. 

The judiciary is the third of the three great departments 
of the general government. The Constitution itself provides 
for one Supreme Court, but leaves to Congress to determine 


202 


THE CONSTITUTION 


8. I. 


how many inferior courts should be established. The organ - 
izaiion of the Supreme Court is also left to Congress. 

Classes of Courts.—At the first session of Congress, in 
1789, an act to organize the judiciary was passed. Two infe¬ 
rior courts were established, called the Circuit Court and the 
District Court. While there were thus three distinct courts, 
there were but two kinds of judges—Supreme and District 1 — 
the Circuit Court being held by a Supreme Judge and a Dis¬ 
trict Judge. 

The country was divided into thirteen districts, in each of which a judge 
was to be appointed, who was to hold a court four times in each year. 
These districts were grouped into three circuits, in each of which a Cir¬ 
cuit Court was to be held twice a year. The Supreme Court consisted of 
a Chief Justice and five Associate Justices. In 1807 the number of Asso¬ 
ciates was increased to six; in 1837 to eight; and in 1863 to nine. This 
court was to hold two sessions each year at the seat of government. With 
the development of the Union the number of inferior courts was increased, 
till, in 1863, there were ten circuits and about forty districts. 

From 1793 till 1869 the Circuit Court was composed of one 
Judge of the Supreme Court and the District Judge. In 
1869 an act of Congress was passed, creating Circuit Judges, 
one for each of the nine circuits into which the country was 
then divided. The same act made the Supreme Court to 
consist of a Chief Justice and eight Associate Justices, cor¬ 
responding to the number of circuits. 

In 1891 another inferior court—the Circuit Court of Ap¬ 
peals—was established in each of the nine circuits. These 
courts have final decision in certain minor cases and have only 
appellate jurisdiction. In the same act provision was made 
for the appointment of nine additional Circuit Judges, one 
for each circuit. Before this (in 1887) there had been pro¬ 
vided an additional Circuit Judge for the Second Circuit; 
and several additional Circuit Judges have been provided 

1 In February, 1801, an act was passed providing for the appointment of sixteen Cir 
cuit Judges, but the act was in force but a single year, being repealed in March, lfc02. 


3. L 


THE JUDICIARY 


203 


since then. The number of District Judges (one or more in 
each State) is now more than ninety. 

In 1911 the Circuit Courts were abolished, their jurisdiction 
being given to the District Courts. 

Office during Good Behavior.—We have seen that repre¬ 
sentatives are elected for two years, senators for six, and 
the President for four. But United States judges hold office 
during good behavior. This is virtually for life, for these 
judges can be removed from office only by impeachment. As 
the judges are not elected by the people, but appointed by the 
President and Senate, they would be virtually dependent on 
the other departments of the government if their term of 
office were not during good behavior. If the President, or 
the President and Senate, could remove them at pleasure, or 
if they were appointed for a limited term, the judges could 
not be truly independent. It was the purpose of the Consti¬ 
tution to make this department coordinate with the others, 
and with no more dependence upon them than they should 
have upon it. The independence of the judiciary is quite as 
important in a republic as in a monarchy. 

Success of the Judicial System.—All the plans submitted to the Con¬ 
vention contained this provision, that the judges should hold their offices 
during good behavior. While Messrs. Randolph, Pinckney, Patterson, 
and Hamilton differed as to many other things, they agreed entirely as to 
the term of office of the judges. The practical working of the system has 
been such as to commend it to the people. The judges, made thus inde¬ 
pendent of the other departments of the government, and removed from 
the fluctuations of popular opinion, have discharged the duties of their 
high trusts with firmness and dignity. In some instances men have been 
appointed to the bench who had previously been intense political parti¬ 
sans, but with scarcely an exception they have laid aside party feeling 
when entering upon office, and as judges have devoted themselves faith¬ 
fully and conscientiously to their appropriate duties of interpreting and 
applying the laws and the Constitution. 

Court of Claims.—In 1855 a Court of Claims was estab¬ 
lished, which hears claims against the government founded 


204 


THE CONSTITUTION 


8. 1. 


on a law of Congress, on any regulation of an executive de¬ 
partment, or on any contract, express or implied, with the 
government of the United States. 1 Before the organization of 
this court, those who had claims against the government 
which were not allowed by the departments had no remedy 
but to petition Congress. The court reports its proceedings 
to Congress, and when its decision is favorable to a claimant, 
a bill is prepared for carrying the decision into effect. This 
bill comes before Congress for its action like other bills. The 
Court of Claims consists of five judges, who hold office during 
good behavior. An appeal from the Court of Claims to the 
U. S. Supreme Court is allowed as to matters of law. 

Other Special Courts.—In 1909 Congress created a Court of 
Customs Appeals, of five judges, with jurisdiction in cases of 
disputed rates of duty. In 1910 it created a Commerce Court, 
consisting of five Circuit Judges, to decide appeals from the 
orders of the Interstate Commerce Commission, but this court 
was abolished three years later. 

Courts of the District of Columbia.—The supreme court of 
the District of Columbia consists of a chief justice and five 
associates, who hold their offices during good behavior. Any 
one of these justices may hold a District Court for the District 
of Columbia, with the same powers and jurisdiction as are 
exercised by the other District Courts of the United States. 
From the supreme court of the District of Columbia, appeals 
may be taken to a court of appeals, consisting of one chief 
justice and two associate justices; and from this court, in 
some cases, to the Supreme Court of the United States. 

Territorial Courts.—Supreme and district courts are established in the 
Territories, but they are not considered as an integral part of the judi¬ 
ciary of the United States. They are established by Congress in virtue 
of the general sovereignty which exists in the general government over 
the Territories. The judges are usually appointed for four years, unless 
sooner removed. 

1 In 1887 similar jurisdiction, in certain cases, was given also to the District Courts. 


3. I. 


THE JUDICIARY 


205 


Commissioners. —The United States Commissioners are officers corre¬ 
sponding to justices of the peace in the States. They hold petty courts 
for determining whether accused persons should be held for the United 
States grand jury, and for passing on inferior maritime questions. 

Three Grades of Judges. —The general judicial system of 
the United States consists of three grades of courts—the 
Supreme, the Circuit, and the District. There are also three 
grades of judges. The Supreme Court is held by the Supreme 
Judges, and the District Court by the judge for the district. 
The Circuit Court of Appeals in each circuit is usually held by 
three Circuit Judges; but sometimes one of them is replaced 
by a District Judge or by the Supreme Justice assigned to the 
circuit. The courts for the District of Columbia are special 
for that locality, and the Court of Claims is special in regard 
to claims. 

Compensation. —The compensation of the judges of the 
United States courts shall not be diminished during their con¬ 
tinuance in office. The propriety of this provision is obvi¬ 
ous. If Congress could reduce their salaries at pleasure, it 
would place them at the mercy of the legislative department, 
and thus destroy their independence. 

When the courts were organized in 1789, the salary of the Chief Justice 
of the Supreme Court was placed at $1,000, and those of the Associate 
Justices at $3,500 each. The District Judges received from $1,000 to 
$1,800. The salaries have been raised from time to time; in 1911 they 
were as follows : the Chief Justice, $15,000 ; the Associates, $14,500 ; the 
Circuit Judges, $7,000 ; and the District Judges, $6,000. 

Provision for Retirement. —By act of February 15th, 1909, 
it was provided that any judge of any court of the United 
States, having held his commission ten years, and having 
attained the age of seventy years, might resign his office and 
receive the same salary during life which was payable, at the 
time of his retirement, for the office which he held ten years 
before the time of his resignation. 


206 


THE CONSTITUTION 


3. I. 


The Attorney-General. —The officers of the United States 
courts are attorneys, marshals, reporters, and clerks. The 
Attorney-General is charged with the duty of conducting 
suits in the Supreme Court in which the United States is 
concerned. He is also to give his advice and opinion upon 
questions of law when required by the President, or requested 
by the heads of any of the departments touching any matters 
that may concern their departments. He has a seat in the 
Cabinet, and is at the head of the Department of J ustice 
established in 1870. 

In the absence of the Attorney-General the Solicitor- 
General becomes acting Attorney-General. He is the second 
officer in rank in the department. 


Officers of the Courts.—The Supreme Court has a reporter whose 
duty it is to report all the cases brought before that court. These reports 
are published, and now fill many volumes. 1 In each judicial district there 
is a district attorney, who attends to all cases in the District Court in 
which the United States is a party. Each district has also a marshal, 
who is the executive officer of the court, performing the same general 
duties in the United States courts as the sheriff in the State courts. He 
carries out the order or judgment of the court, and executes its process. 
The clerk keeps a record of all the proceedings, giving a history of each case, 
with all the orders, decrees, judgments, etc., of the court. He keeps the 
seal of the court, and has charge of any moneys paid. The attorney and 
the marshal are appointed by the President and Senate, but each court 
appoints its own clerk. The Supreme Court appoints also its own 
marshal and reporter; and the Circuit Court of Appeals, its own 
marshal and clerk. There are similar court officers for the various 
courts of special jurisdiction—Court of Claims, Courts of the District 
of Columbia, etc. 


1 The Reporters have been as follows: 
Alexander J. Dallas, 1789 to 1800. 
William Cranch, 1S01 to 1815. 
Henry Wheaton, 1816 to 1827. 
Richard Peters, Jr., 1828 to 1842. 
Beni. C. Howard, 1S43 to 1860. 
Jeremiah S. Black, 1861 to 1862. 

A reference to 5 Wheaton, 317, means 


John W. Wallace, 1863 to 1875. 
Wm. T. Otto, 1875 to 1883. 

J. C. Bancroft Davis, 1883 to 1902. 
Charles Henry Butler, 1902 to-. 


the 5th Vol., 317th page of Wheaton’s Reports. 


8. II. 1. 


THE JUDICIARY—CASES 


207 


Sec. 2, Clause I.— The judicial power shall extend to all 
cases, in law and equity, arising under this Constitution, the 
laics of the United States, and treaties made, or ichich shall 
he made, under their authority ;—to all cases affecting ambas¬ 
sadors, other public ministers, and consuls;—to all cases of 
admiralty and maritime jurisdiction; — to controversies to 
which the United States shall be a party j — to controversies 
between two or more States between a State and citizens of 
another State ;—between citizens of different States,—between 
citizens of the same State, claiming lands under grants of 
different States, and between a State, or the citizens thereof, 
and foreign states, citizens, or subjects . 

Judicial Power Limited to Cases. —The judicial power 
extends to all cases, etc. The court has no power to act 
except when cases are brought before it. “ All cases in law 
and equity are all suits, civil and criminal, involving contro¬ 
verted rights between party and party, and instituted in legal 
form of judicial proceedings.” 1 Until a case has been regu¬ 
larly brought before the court, the judges have no power in 
regard to it. It is not their province to give information to 
Congress that a proposed law is unconstitutional, nor does it 
belong to them to advise the President that a law already 
enacted is in conflict with the Constitution. Their power is 
judicial merely. 

When a suit is commenced and the case is before them, it is their duty 
to interpret the law involved, and to give the meaning of any part of the 
Constitution which may have a bearing upon the matter at issue. But 
the court can not go beyond the case which is before it and give its 
views as to points not involved. The judges do not make the law; they 
interpret and apply it; and this only as cases are regularly brought before 
the court. 

Cases in Equity. —The judicial power extends to cases in 
equity. “ It is the peculiar province of a Court of Equity to 

1 Farrar, page 458. 


208 


THE CONSTITUTION 


8. II. 1. 


relieve against what are termed hard bargains. These are 
contracts in which, though there may have been no direct 
fraud or deceit sufficient to invalidate them in a court of law, 
yet there may have been some undue and unconscionable 
advantage taken of the necessities or misfortunes of one of 
the parties which a Court of Equity would not tolerate. In 
such cases, where foreigners were concerned on either side, it 
would be impossible for the federal judicatories to do justice 
without an equitable as well as a legal jurisdiction." 1 In 
some of the States there are separate courts for cases of 
equity, called Courts of Equity or Courts of Chancery. In 
other States, the same court has jurisdiction both in law and 
equity; this is the case, as we have seen, in the United States 
courts. 

Cases under the National Constitution, Laws, and Treaties. 

—The power extends to cases arising under the Constitution , 
the laws of the United States, and treaties made under their 
authority. The Constitution confers certain powers, grants 
certain privileges, and secures to the citizen certain rights. 
If a citizen should be injured in regard to any of these, he 
could seek redress in a United States court. If a law of the 
United States is violated, the offender must be tried before 
a national, not before a State court. Robbery of the mail, 
evasion of the revenue laws, counterfeiting the coin of the 
country, would be instances of this. Any disregard of the 
stipulations of a treaty, whether by an individual, a corpora¬ 
tion, or a State, would lead to a case arising under the trea¬ 
ties made by the authority of the United States, which must 
be tried before a national court. 

The propriety of referring to the courts of the United States the vari¬ 
ous cases enumerated in this clause can not be questioned. 44 The judicial 
power,” says Chief Justice Jay, 44 extends to all cases affecting ambassa¬ 
dors, other public ministers, and consuls; because, as these officers are 
of foreign nations, whom this nation is bound to protect and trect accord 
1 Federalist, No. 80. 


8. n. 1 . 


THE JUDICIARY—JURISDICTION 


209 


ing to the laws of nations, cases affecting them ought to he cognizable 
only by national authority : 

“ To all cases of admiralty and maritime jurisdiction; because, as the 
seas are the joint property of nations, whose rights and privileges relative 
thereto are regulated by the laws of nations and treaties, such cases nec¬ 
essarily belong to national jurisdiction : 

“To controversies to which the United States shall be a party; be¬ 
cause, in cases in which the whole people are interested, it would not be 
equal or wise to let any one State decide and measure out the justice due 
to others: 

“To controversies between two or more States; because domestic 
tranquillity requires that the contentions of States should be peacefully 
terminated by a common judicatory, and because, in a free country, jus¬ 
tice ought not to depend on the will of either of the litigants : 

“To controversies between a State and citizens of another State; be¬ 
cause, in case a State—that is, all the citizens of it —has demands against 
some citizens of another State, it is better that she should prosecute their 
demands in a national court than in a court of the State to which those 
citizens belong, the danger of irritation and criminations arising from 
apprehensions and suspicions of partiality being thereby obviated : 

“ To controversies between citizens of the same State claiming lands 
under grants of different States; because, as the rights of the two States 
to grant the land are drawn into question, neither of the two States ought 
to decide the controversy : 

“ To controversies between a State, or the citizens thereof, and foreign 
states, citizens, or subjects; because, as every nation is responsible for 
the conduct of its citizens toward other nations, all questions touching the 
justice due to foreign nations or people ought to be ascertained by and 
depend on national authority.” 1 

National Questions.—The judicial power of the United 
States is thus made to extend to all cases involving national 
questions. The Supreme Court is to construe the laws and 
Constitution of the United States. The crowning defect of 
the old Confederation was that there was no national judi¬ 
ciary. The United States had treaties with other nations, 
whose import, like that of other laws, must be ascertained by 
judicial determinations. 


i 2 Dallas, 419, 475. 


210 


THE CONSTITUTION 


3. II. 1. 


“ To produce uniformity in these determinations, they ought to be sub¬ 
mitted in the last resort to one supreme tribunal. And this tribunal ought 
to be instituted under the same authority which forms the treaties them¬ 
selves. If there is in each State a court of final jurisdiction, there may be 
as many different final determinations on the same point as there are courts. 
To avoid the confusion which would unavoidably result from the contra¬ 
dictory decisions of a number of independent judicatories, all nations 
have found it necessary to establish one tribunal paramount to the rest, 
possessing a general superintendence, and authorized to settle and declare 
>in the last resort a uniform rule of civil justice.” 1 “ Thirteen independ¬ 

ent courts of final jurisdiction over the same causes arising upon the same 
laws, is a hydra in government, from which nothing but contradiction and 
confusion can proceed. ” 2 

Excellence of the System.—The good results anticipated 
from the judicial system of the United States have been, to a 
large extent, realized. “The act of September, 1789, pro¬ 
viding for the organization of the courts, has stood the test 
of experience since that time with very little alteration or 
improvement; and this fact is no small evidence of the wis¬ 
dom of the plan, and of its adaptation to the interest and 
convenience of the country. The act was the work of much 
profound reflection and of great legal knowledge; and the 
system then formed and reduced to practice has been so 
successful and so beneficial in its operation that the adminis¬ 
tration of justice in the federal courts has been constantly 
rising in influence and reputation.” 3 The chairman of the 
committee that reported the bill was Oliver Ellsworth, of 
Connecticut, who subsequently held the office of Chief 
Justice of the Supreme Court. 

Eleventh Amendment.—The Constitution, as it originally 
stood, allowed suits to be brought against a State by citizens 
of another State, or by citizens or subjects of a foreign state. 
This caused dissatisfaction on the part of the States, as they 
were unwilling to be arraigned before the United States 
courts on suits brought by private persons. For this reason 

1 Federalist, No. 22. a Federalist, No. 80. »Kent I., page 305. 


3. IL 1. 


THE JUDICIARY—JURISDICTION 


211 


an amendment to the Constitution was proposed by Congress 
March 5th, 1794 ; 

The judicial power of the United States shall not he con¬ 
strued to extend to any suit in laic or equity commenced or 
prosecuted against one of the United States by citizens of 
another State , or by citizens or subjects of any foreign state. 

This was ratified by the legislatures of three fourths of the 
States, and became a part of the Constitution, as announced 
by the President, January 8th, 1798. It is the Eleventh 
Amendment. While it relieves so far the dignity of the 
States, it weakens the power of the national judiciary to do 
justice to the citizen, which is one of the ends for which the 
Constitution was formed. 

United States Courts not Open to Citizens of a Territory. 

—The word State , in this clause (Section 2, Clause 1), is 
interpreted by the courts as not including the Territories or 
the District of Columbia. Hence, a citizen of one of the 
Territories or of the District of Columbia can not bring a 
suit in a United States court. The national courts, which 
are open to the citizens of every State, and even to aliens, 
are closed against a portion of the citizens of the United 
States. 

Ho direct suit can be brought against the United States 
either by a citizen or a State, without the authority of an act 
of Congress. 1 But claims against the government may be 
brought before the Court of Claims. 

Nor are the officers of the general government liable to be 
sued for acts performed in the regular discharge of their 
official duties. “ The suability of the officers for acts in the 
regular routine of their duties, and their liability to appear in 
courts, and plead such process, or answer for it in their own 
persons or property, would not only stop the wheels of 


» 6 Wheaton. 411. 


212 


THE CONSTITUTION 


3. H. 2. 


government, but break the whole machine to pieces, and put 
an end to that political ideal being—the United States.” 1 

Clause 2 .—In all cases affecting ambassadors , other public 
ministers and consuls , and those in which a State shall be a 
party , the Supreme Court shall have original jurisdiction. 
In all the other cases before mentioned, the Supreme Court 
shall have appellate jurisdiction , both as to law and fact , 
with such exceptions and under such regulations as the Con¬ 
gress shall make. 

Jurisdiction, Original and Appellate.— Jurisdiction is the 
power to hear and determine a cause. Original jurisdiction 
is the right to hear and determine a cause in the first instance. 
If a suit can be commenced in the District Court, for instance, 
then that court has original jurisdiction in the case. And if 
the case must be commenced in the lower court, and then 
can be carried, on appeal, to the Supreme Court, then the 
Supreme Court has only appellate jurisdiction in the case. 

The Circuit Court of Appeals has appellate jurisdiction 
only. 

The Constitution vests the judicial power in one Supreme 
Court and in such inferior courts as Congress may establish. 
One Supreme Court must be established, but Congress may 
exercise its discretion tfs to the number and character of the 
inferior courts. So, also, the Constitution itself prescribes 
the cases in which the Supreme Court shall have original 
jurisdiction ; that is, the cases which may be commenced in 
the Supreme Court. In any other case to which the judicial 
power of the United States extends, the Supreme Court has 
appellate jurisdiction only. 

“ It has been decided by the court that this original jurisdiction can 
neither be enlarged nor diminished; because, if enlarged, it would detract 
from the constitutional appellate jurisdiction; and, if diminished, it 
would so far deny all jurisdiction to the Supreme Court, which can take 
1 (Wirt) Opinions oj Attorney-Generals. I., page 457. 


8. II. 2. 


THE JUDICIARY—JURISDICTION 


213 


appellate jurisdiction only in ‘ other cases.’ It must also be exclusive ; 
because, if a case of this kind can originate in any other court, this court, 
not being able to take appellate jurisdiction, could have no jurisdiction at 
all.” 1 

The language of this clause, as to the appellate power of 
the Supreme Court, implies the establishment of the inferior 
courts in which the suits can be commenced. As already- 
stated, such inferior courts have been established: the District 
Courts, and several courts of special jurisdiction. The act of 
Congress establishing each court, as amended by later acts 
of Congress, prescribes in what cases it shall have original 
jurisdiction. Of some cases, for example, the District Courts 
have exclusive original jurisdiction ; and of others, this juris¬ 
diction is concurrent with the Court of Claims or with the 
State courts. So, also, the cases are prescribed which may¬ 
be carried from these courts up to the Circuit Court of Appeals, 
and those which may be carried directly up to the Supreme 
Court. 

If Congress had not made these exceptions and regula¬ 
tions, the Supreme Court would have, by the Constitution, 
appellate jurisdiction in all the cases coming under the cog¬ 
nizance of the national courts, except those in which the 
Constitution had given it original jurisdiction. Congress 
has excepted some cases out of the appellate jurisdiction 
of the Supreme Court, giving the final disposition of them to 
the inferior courts. 

The Act of 1789 provides for the exercise of appellate 
power by the Supreme Court in certain cases which have been 
decided by the highest State courts. Of course, these cases 
involve the Constitution, laws, or treaties of the United 
States; otherwise, the decision of the State supreme court 
would be final. 

Two Views of Appellate Jurisdiction.—Two views are held as to the 
appellate jurisdiction of the courts. The language of the Constitution is, 

1 Farrar, page 488. 


214 


THE CONSTITUTION 


8. n. *. 


“ In all the other cases before mentioned, the Supreme Court shall hare 
appellate jurisdiction, both as to law and fact, with such exceptions and 
under such regulations as the Congress shall make.” Some maintain that 
the expression, u with such exceptions and under such regulations as the 
Congress shall make,” gives Congress the control of the whole matter. 
They hold that the courts can exercise appellate jurisdiction in those cases 
only which Congress has provided for. 

Others hold that the Constitution itself vests the judicial power of the 
nation in the Supreme Court and such inferior courts as Congress may 
establish. As Congress is not dependent upon the President for authority 
to legislate, neither are the courts dependent on Congress for authority to 
exercise their judicial functions. According to this view the whole judi¬ 
cial power belongs to the courts. u Congress may remove or ‘ except ’ 
some cases out of the appellate jurisdiction of the Supreme Court by giv¬ 
ing it to some other court of the United States, but not by abolishing it, or 
leaving it to be exercised or not by anybody else.” Though the former 
of these views has been the one adopted in the main, both by the legisla¬ 
tive and the judicial departments of the government, the latter seems to be 
more in accordance with the spirit and letter of the Constitution. 

Judicial Power in the United States and Great Britain.— 

The courts of the United States have a wider scope than those 
of Great Britain. If a law of Congress conflicts with the 
Constitution, the Supreme Court may declare it null and 
void. But the courts of Great Britain can only interpret and 
apply the statutes of Parliament; they can not declare them 
null. There is no question of constitutionality or unconsti¬ 
tutionality touching an act of the British Parliament. Par¬ 
liament itself is supreme for lawmaking purposes; it pos¬ 
sesses all the legislative power of the British people. But 
while Congress can repeal or amend its own statutes, it can 
not alter or amend the Constitution. The Constitution is 
the work of the people, and they alone can amend it. The 
legislative power of Parliament, therefore, is broader than 
that of the Congress of the United States, and, as a conse¬ 
quence, the province of the British courts is narrower than 
that of ours . 1 

1 Yeamau’s Study of Government , Chap. vii. 


3. II. *. THE JUDICIARY—THEIR POWER HOT POLITICAL 215 


The French Courts, like the British, lack this power of overruling the 
work of the legislature. The French Constitution is like a body of prin¬ 
ciples which the French Parliament is bound to respect, but with no 
provision for judicially annulling any acts by which the Parliament vio¬ 
lates these principles. 

Power of the Courts Judicial, not Political. —It has been 
already said that the powers of the courts are judicial , not 
political . Thus, if there were two contending parties, each 
claiming to be the rightful government of France, for in' 
stance, the question would not be left to the judiciary. So if 
there should be a contest between two parties in a State, each ‘ 
claiming to be the legitimate government, the question would 
be a political and not a judicial one. The Supreme Court 
has itself decided that certain questions were political, and 
therefore did not come within its jurisdiction. The judiciary 
can not prescribe a policy for the government of the country. 
That must be left to the other departments. The judicial 
department can not restrain the others in their action, though 
the acts of both, when performed, are in proper cases subject 
to its cognizance . 1 

A court’s proper function is that of adjudication of rights between in¬ 
dividuals as individuals, not as candidates for office or parties to a political 
dispute. It can not correct an error or fraud on the part of an executive 
officer in counting votes or otherwise conducting an election. In the ex¬ 
ercise, however, of the extraordinary power of annulling an act of the 
legislative department when in conflict with the Constitution, it can declare 
void any act of an executive who acts by authority of a law which the 
court decides to be unconstitutional. There is danger, in times of high 
political excitement, that one department may encroach upon another; 
but no government, save an absolute despotism, could be framed in which 
this liability would not exist. We have a right to assume that each de¬ 
partment of the government will honestly and in good faith confine itself 
to the duties which by the Constitution have been assigned to it. 

The Courts and Congress. —Apprehension is sometimes ex¬ 
pressed lest the Supreme Court, by deciding acts of Congress 

» 4 Wallace, 600. 


216 


THE CONSTITUTION 


3 . n. & 


to be unconstitutional, may obstruct the work of legislation 
and block the wheels of government. But it must be remem¬ 
bered that each of the three great departments of the govern¬ 
ment is clothed with great power, and each may do incalcu¬ 
lable mischief, if so disposed ; yet the history of the nation 
does not show that this power has been so used to any con¬ 
siderable extent. In general, the national courts have been 
extremely cautious in regard to interference with the laws 
of Congress. 

“ It is an axiom in our jurisprudence,” said Judge Swayne 
(United States vs. Rhodes and others), “ that an act of Con¬ 
gress is not to be pronounced unconstitutional unless the de¬ 
fect of power to pass it is so clear as to admit of no doubt. 
Every doubt is to be resolved in favor of the validity of the 
law. Since the organization of the Supreme Court but three 1 
acts of Congress have been pronounced void for unconstitu¬ 
tionality.” 

Laws Declared Unconstitutional.—The first instance was 
in 1801, at the beginning of Mr. Jefferson’s administration. 
Near the close of the administration of Mr. Adams, a person 
was appointed to office, and his commission made out but not 
delivered. Mr. Jefferson withheld the commission. Appli¬ 
cation was made to the Supreme Court for a writ of manda¬ 
mus to compel Mr. Madison, the Secretary of State, to deliver 
it, the judiciary act of 1789 authorizing the Supreme Court 
to issue such writs. But the court, while it held that to 
withhold the commission was an act not warranted by law 
and violative of a vested legal right, decided that clause of 
the act of 1789 to be unconstitutional, as it gave the court 
original jurisdiction where the Constitution had not given it. 2 

Dred Scott Case.—The second instance was in the cele¬ 
brated Dred Scott case in Mr. Buchanan’s administration, in 
1857. The court decided that the eighth section of the act 

1 Since this opinion was written there have been other cases. 

* 1 Cranch, 137, Marbury vs. Madison. 


s. n 2 


THE JUDICIARY—DECISIONS 


217 


of Congress of 1820, preparatory to the admission of Missouri 
into the Union, commonly called the “ Missouri Com¬ 
promise,” was unconstitutional. This section prohibited 
slavery in that part of the Louisiana territory lying north of 
thirty-six degrees thirty minutes north latitude, and not 
included in the State of Missouri. 1 (It was claimed by the 
minority of the court at the time, and by other judges of the 
same court since, that this question was not before the court, 
and therefore that what was said in regard to it was no more 
binding than the views of the minority.) 

Case of Garland.—The third case was that of Garland, of 
Arkansas, which was tried in the winter of 1866-67. Congress 
had enacted (act of July, 1862, amended by that of January, 
1865) that all officers of the United States, including attor¬ 
neys practicing in United States courts, should take a test 
oath. The Supreme Court decided that this act was uncon¬ 
stitutional as to attorneys of the Supreme Court who were 
such before the civil war, as being a bill of attainder and ai> 
ex post facto law. 2 

The last two decisions were made in times of high political 
excitement, and were severely commented upon by lawyers; 
the dissenting judges also gave their reasons for believing the 
laws in question to be strictly constitutional. Some other 
cases have occurred more recently, but they are comparatively 
unimportant, with the exception of the decision on the income 
tax law of 1894, which is explained on page 83. 

The fact that, in a period of more than fourscore years. 
Congress enacted but three laws which, in the judgment of 
the Supreme Court, contained anything conflicting with the 
Constitution, is a proof of the care and caution of Congress 
on the one hand, and, on the other, of the disposition of the 
judiciary to avoid all encroachment upon the legislative 
department of the government 

» 19 Howard, 393, Scott vs. Sandford. 

* 4 Wallace, 334, Ex parte Garland. 


313 


THE CONSTITUTION 


0. il a. 


Clause 3 .— The trial of an crimes, except in cases of im¬ 
peachment, shall he by jury ; and such trials shall be held in 
the State where the said crimes shall have been committed; 
but when not committed within any State , the trial shall be 
at such place or places as the Congress may by law have 
directed. 

Trial by Jury. —A trial by jury is in the United States a 
trial by twelve men, impartially selected, who must all con¬ 
cur in the guilt of the person accused before he can be con¬ 
victed. This refers to United States courts, not State courts. 
If State constitutions do not prevent it, States may pass laws 
for a jury of a different number than twelve or provide that a 
majority or other number may render a verdict. 

This right of trial by jury has long been regarded as one of 
the bulwarks of liberty. 

In the celebrated Magna Charta, granted by King John at Runny- 
raede, June 15th, 1215, is the following article: “No freeman shall be 
taken, or imprisoned, or disseized, or outlawed, or banished, or any ways 
injured; nor will we pass upon him, nor send upon him, unless by the 
legal judgment of his peers, or by the law of the land.” “Nor will we 
pass upon him, nor send upon him ” (nec super eum ibimus, nec super 
eum mittemus;, is interpreted to mean that no man should be condemned 
(without trial by his peers) either in the Court of the King’s Bench, where 
the king is supposed always to be present and to render judgment in 
his own person, or before any judge whom the king may delegate to try 
him. 1 

The word peers means equals, and has reference to the 
different classes or orders of men in a country like England. 
Another article of Magna Charta says: “ Earls and barons 
snail not be amerced but by their peers.” A man must be 
tried by a jury composed of those who are of the same rank 
or standing with him. In the United States, as we have no 
orders of nobility, the trial is by a jury of impartial men. 

1 Bowen’s Constitution of England and America, page 1L 


8. II. 8. 


THE JUDICIARY—TRIALS 


219 


Most of the cases that come before the Supreme Court, and many of 
those before the lower courts, are decided by the court; there is no jury. 
But the Judiciary Act of 1789, and later acts of Congress, provide that 
issues of fact, in the District Courts, in all causes except equity suits and 
civil causes of admiralty and maritime jurisdiction, shall be by jury. 
And the Constitution requires that the trial of all criminal cases, before 
any United States court, shall be by jury. Cases of impeachment are 
tried by the Senate, as we have seen, and of course there is no jury in 
such cases. 

Place of Trial. —The trial must take place in the State 
where the crimes were committed. This is a provision in 
favor of the accused. He is made to suffer as little incon¬ 
venience as possible. Offences “not committed in any State” 
are those in the District of Columbia; in the Territories; in 
the forts and arsenals of the United States; and upon the 
high seas. Provision is made by law for all these; those com¬ 
mitted upon the high seas are tried in the State where the vessel 
first arrives. 1 

Unanimity of the Jury. —With us there is no conviction unless the 
jury are unanimous. “The unanimity required in the verdicts of Eng¬ 
lish and American juries was not originally required among the people 
with whom the institution had its origin; the verdict being reckoned by 
a majority, except among the Normans after they went to that province 
of France which has since borne their name. ... In Sweden the jury 
exists to day as it has existed for many centuries. A verdict is given by 
one half the jury, or any greater proportion, and the judge; or by a 
unanimous jury against the opinion of the judge; there being no verdict 
when the majority are opposed by a minority and the judge. 

“ We could now well consider whether absolute unanimity may not 
safely be dispensed with; whether the jury is not less a necessity in a per¬ 
fectly free community of equals than in one composed of the three orders; 
whether its functions, in the progress of our political growth, have not 
been in great part or entirely performed, so that in the future it is to be 
simply a preservative and safeguard instead of a forming and guiding 
influence—a conservative rather than a progressive force, and therefore 
whether we may not well limit its application to penal, criminal, and 


1 Paschal’s Annotated Constitution, page 211. 


220 


THE CONSTITUTION 


Amend. 6. 


political causes and actions arising in tort or sounding in damages; leav¬ 
ing all matters of account, contract, title, and estates entirely to the 
court, without the intervention of a jury. Such, at least, seems to be the 
tendency of the professional judgment of the country.” 1 

We may consider here some constitutional amendments 
which relate to the subject of the judiciary. 

Amendment 5 .—No person shall he held to answer for a 
capital or otherwise infamous crime , unless on a presentment 
or indictment of a grand jury , except in cases arising in the 
land or naval forces , or in the militia when in actual service 
in time of war or public danger; nor shall any person he 
subject for the same offense to be twice put in jeopardy of 
life or limb ; nor shall be compelled in any criminal case to be 
a witness against himself; nor be deprived of life , liberty , or 
property , without due process of law ; nor shall private prop¬ 
erty be taken for public use without just compensation. 

Grand Jury.—There are two juries, the grand jury and the 
petit jury ; the latter being meant when the word jury is 
used without any qualifying term. The grand jury is com¬ 
posed of a number of men, not less than twelve nor more 
than twenty-three, selected as prescribed by law. I 11 the 
national courts, after the grand jury have been impaneled, the 
judge delivers his charge to them, directing them to make 
careful inquiry of all offenses committed within the district 
against the laws of the nation, and to make presentment of 
the same. 

Presentment and Indictment.—A presentment is an accu¬ 
sation made by the grand jury from their own observation or 
knowledge, or from evidence before them. An indictment is 
a formal accusation drawn up by the proper officer—in the 
United States courts the district attorney—charging offenses 
upon certain parties. It is the duty of the grand jury to 

1 Teaman, Chap. xiii. 


Amend. 5. 


THE JUDICIARY—TRIALS 


221 


examine the grounds of this accusation. If the evidence 
seems to them insufficient to warrant a trial of the party 
accused, they indorse upon the bill of indictment “not a true 
bill,” or “not found,” and the prisoner is released. But if 
they regard the accusation as well founded, they indorse upon 
the indictment the words “a true bill.” In this case they 
are said to find the indictment, and the person accused must 
be brought to trial. A presentment may lead to an indict¬ 
ment or it may not. Sometimes it is a mode taken by the 
grand jury to call public attention to certain acts which are 
thought worthy of reprehension. Though the Constitution 
says no person can be tried unless on a presentment or in¬ 
dictment, no person is in fact brought to trial except on in¬ 
dictment. Congress has never authorized trials on present¬ 
ment. 

Second Trial.—No person may be subject to a second trial 
for the same offense. That is, when by the verdict of a jury 
a man has been regularly acquitted or convicted of the offense 
charged, and judgment has been pronounced, he can not be 
tried for that offense a second time. But if the jury could 
not agree, or were discharged before a verdict was rendered, 
or if judgment was arrested after a verdict, or a new trial 
granted in his favor, he might be tried again. 

Privileges of Accused Persons.—No person may be com¬ 
pelled to testify against himself, or be deprived of life, liberty, 
or property, without due process of law. In former times 
criminals were compelled, and in some countries are now, to 
be witnesses against themselves, and even torture is used to 
wring from them a confession of guilt. Though the protec¬ 
tion to the citizen specified in this amendment was among 
the common-law privileges, it is inserted here for additional 
security. 

Private Property shall not be taken for public use without 
just compensation. It is necessary for the government some¬ 
times to take possession of private property for public pur- 


222 


THE CONSTITUTION 


Amend, o. 


poses. A road is to be made, or a street to be opened, for 
example. In some cases the property is purchased before¬ 
hand ; but if a price can not be agreed on, or the owner will 
not sell, the property is condemned , and a jury are summoned 
to assess the damages. They may not place as high an esti¬ 
mate on it as the owner does, but this is a liability to which 
all are subject alike. 

The power of the government to take private property in this manner 
is called eminent domain. All kinds of private property, chattel as 
well as real, can thus be taken Property includes intangible rights and 
franchises as well as land The compensation must be paid in money . 
Therefore money can not be taken, except probably in time of war and 
great public emergency. What is a public use is decided by the courts, 
but the wisdom or expediency of the taking, and the amount of property 
to be taken, are matters that lie within the province of the legislature. 
Highways are public and that term includes canals and railroads. Burying 
grounds are not public uses, but parks are. Waterworks and water pipe 
lines, natural and artificial gas pipe lines are public uses. The drainage of a 
large tract of swamp land and the securing of water power for mills and 
public buildings are public uses for which private land may be taken. The 
power belongs to the government, but the government can delegate its 
exercise to a corporation created for the purpose of carrying out the public 
use. This is usually done. 

Amendment 6.— In all criminal prosecutions , the ac¬ 
cused shall enjoy the right to a speedy and public trial , by an 
impartial jury of the State and district wherein the crime 
shall have been committed , which district shall have been pre¬ 
viously ascertained by law , and to be informed of the nature 
and cause of the accusatioyi; to be conf ronted with the wit¬ 
nesses against him ; to have compulsory process for obtaining 
witnesses in his favor, and to have the assistance of counsel 
for his defense . 

Right to Impartial Trial.—All but the last two of these 

provisions were a part of the common law of England. But, 
until a period comparatively recent, the accused was not in 
that country allowed in capital cases to have the assistance of 


Ainsnd. T. 


THE JUDICIARY-—TRIALS 


223 


counsel, or the right to compel the attendance of witnesses. 
We can hardly credit the statement, that before the accession 
of William and Mary, in 1688 , a person arraigned for a cap¬ 
ital crime was entitled to neither witnesses nor counsel. Yet 
such was the fact. It was well, therefore, to guard these 
rights by a provision in the Constitution ; thus making sure 
that in all the land an accused person should be entitled not 
only to a trial by jury, but to witnesses and counsel as well. 

As a matter of practice, the accused is always provided 
with counsel by the government if he is unable from poverty 
to employ his own lawyer. This is a liberal application of 
this clause. 

In Time of War. —Amendments 5 and 6 have reference to the civil 
administration of the government in time of peace. “ Whenever from in¬ 
vasion or rebellion the public safety may require the administration of 
martial authority, criminals may be tried, convicted, and executed, without 
the intervention of a jury.” 1 “The conspirators who assassinated the 
President of the United States while the country was in a state of war and 
while the city of Washington was under martial law, were triable by mili¬ 
tary commission under the act of Congress, and not entitled to a trial by 
jury.” 3 “ The Constitution contemplates the possibility of a state of pub¬ 
lic danger arising from the presence of a foreign or domestic foe. . . 

It contemplates the necessary suspension for the time being, and in par 
ticular localities, of the civil functions of the government, that the martial 
powers of the same may be efficiently exercised for the security and wel¬ 
fare of the nation.” 3 

Amendment 7.— In suits at common law, where the value 
in controversy shall exceed twenty dollars, the right of trial by 
jury shall be preserved, and no fact tried by a jury shall be 
otherwise reexamined in any court of the United States, than 
according to the rules of the common law. 

The phrase “ common law ” is used in contradistinction from equity, 
admiralty, and maritime jurisprudence. It is the common law of England, 
the lex non scripta. the immemorial customs of the country. Article III., 
Section 2, Clause 2, gives to the Supreme Court appellate jurisdiction both 

1 Tiffany. page 366. * Paschal, page 264. * Tiffany, page 269. 


224 


THE CONSTITUTION 


8. IIL 1. 


as to law and fact. “ The real object of that provision was to retain the 
power of reviewing the fact as well as the law, in eases of equity, and 
admiralty and maritime jurisprudence.” But as it was thought by some to 
authorize the Supreme Court to review the decision of a jury in mere 
matters of fact, and thus reduce to a form the right of trial by jury in 
civil cases, this amendment was proposed to remove the misapprehension. 
The rules of common law recognized but two modes of reexamining facts 
tried by jury; first, the granting a new trial by the court before which the^ 
issue was tried; and, secondly, by a writ of error. A writ of error re¬ 
moves nothing for reexamination but the law. An appeal would remove* 
the cause entirely, subjecting the fact as well as the law to review and a 
re-trial. But an appeal is a process of civil law origin and not of com¬ 
mon law. 

Sec. 3, Clause I —Treason against the United States 
shall consist only in levying war against them, or in adher¬ 
ing to their enemies, giving them aid and comfort. No per¬ 
son shall he convicted of treason unless on the testimony of 
two witnesses to the same overt act, or on confession in open 
court. 

Treason is the highest crime known to society, because it 
tends to the destruction of the government itself. A traitor 
is always regarded as meriting the severest punishment that 
society can inflict. As treason is a breach of allegiance, it 
can be committed by one only against the government to 
which he owes allegiance. Most governments have made the 
word treason include many offenses which were not strictly 
treasonable, and thus sometimes persons have been put to 
death for crimes for which some milder punishment would 
have been sufficient. As the word implies a breach of faith, it 
was petit treason for a wife to kill her husband, or for a servant 
to kill his master. The act was more than murder ; it was a 
kind of treason. For a subject to attempt to take the life of 
the king or queen, or to levy war against the king, or to ad¬ 
here to his enemies, was high treason. 

Constructive Treason. —When a tyrannical king was on the 
throne, his judges would often declare offenses to be treason 


a. m. i. 


THE JUDICIARY—TREASON 


225 


which the people never suspected to be treasonable. This 
was called constructive treason. To prevent this, a statute 
was enacted in England in the time of Edward III., which 
defined the term. This statute comprehended the various 
kinds of treason under seven heads. The third of these was, 
levying war against the king in his realms ; and the fourth 
was, adhering to the king’s enemies in his realm, and giving 
them aid and comfort in his realm or elsewhere. 

Definition of Treason.—Our Constitution takes a part of 
this statute of Edward III. for its definition of treason. It is 
made to consist only in levying war against the nation, or in 
adhering to its enemies, giving them aid and comfort. The 
purpose was to make the meaning as definite as possible, that 
all opportunity for constructive treason might be removed. 
Mr. Madison thought the definition was too restricted, and 
that more latitude ought to be left to the discretion of Con¬ 
gress. But the Convention preferred to place the definition 
in the Constitution itself, and not to leave it to the judgment 
of Congress. 

It has been decided by the court that there must be an 
actual levying of war; that a conspiracy to subvert the gov¬ 
ernment by force is not treason. But after war has been 
commenced, men may give aid and comfort to the enemy 
although they may not actually bear arms. The language of 
v the court is : If war be actually levied, that is, if a body of 
'men be actually assembled for the purpose of effecting by 
force a treasonable purpose, all those who perform any part, 
however minute, or however remote from the scene of action, 
and who are actually leagued in the general conspiracy, are 
to be considered traitors. 1 

Case in the Civil War.—While the Constitution thus makes the offense 
of treason to embrace the giving aid and comfort to the enemies of the 
country, opinions may differ in regard to what constitutes “ aid and com¬ 
fort.” During the civil war, two steamers belonging to a steamship com- 
1 Ex parte Bollman, 4 Cranch, 186. 

a. a— is 


THE CONSTITUTION 


3. IQ. 2. 


226 


pany had been seized for the Confederate service. Subsequently pay¬ 
ment was offered for them to the agent of the company, when he was in¬ 
formed by the government that acceptance of payment from the Confed¬ 
erates would be treated as an act of treason against the United States. 
Said Mr. Seward, Secretary of State: “ It is treason for any person to 
give aid and comfort to public enemies. To sell vessels to them which it 
is their purpose to use as ships of war, is to give them aid and comfort. 
To receive money from them in payment for vessels which they have 
seized for those purposes, would be to attempt to convert the unlawful 
seizure into a sale, and would subject the party so offending to the pains 
and penalties of treason, and the government would not hesitate to bring 
the offender to punishment .” 1 

In times of rebellion or civil war, all persons need to ex¬ 
ercise great caution in regard to their conduct and language, 
lest they subject themselves to the charge of giving aid and 
comfort to the enemies of their country. Actions and words 
which in other circumstances would pass unnoticed may be 
productive of great mischief when the life of the nation is 
endangered. All good citizens will, therefore, at such times 
studiously refrain from whatever might bear an unfavorable 
construction. 

Conviction of treason requires the testimony of two wit¬ 
nesses to the same overt act of treason, or a confession in 
open court. A private confession passes for nothing. 

Aaron Burr, who had been Vice President of the United 
States, was tried for treason in 1807 and acquitted. 

Clause 2.— The Congress shall have power to declare the 
punishment of treason, but no attainder of treason shall work 
corruption of blood, or forfeiture except during the life of 
the person attainted. 

Punishment of Treason in England —Had this clause been 
omitted from the Constitution, Congress would still have had 
the power to declare what punishment should be inflicted on 
a traitor. It was inserted, doubtless, to prevent the barbari- 

1 Tiffany, page 283. 


3. in. 2 . THE JUDICIARY—TREASON 227 

ties usually connected with the punishment of treason, and 
to limit the effects of attainder. According to the English 
theory, the judgment itself pronounced upon one who had 
been convicted of treason involved certain consequences in 
the mode of his execution as well as in regard to his estate. 
The offender was put to death in a cruel manner. His bowels 
were taken out while he was yet alive, and burned in his 
presence. His head was cut off and his body divided into 
quarters. 

The judgment also involved attainder , which worked cor¬ 
ruption of blood or forfeiture. There was no judgment of 
attainder, but the attainder followed the judgment as a matter 
of course. And this attainder included corruption of blood 
or forfeiture as a natural consequence. All his property, of 
every description, was forfeited. And not only so, his chil¬ 
dren could not inherit through him from his ancestors. All 
inheritable qualities were destroyed by corruption of blood. 
In a country where real estate was entailed, the children were 
thus made to suffer for the offense of the parent. If the 
property of the traitor himself were confiscated to the gov¬ 
ernment, there would be no hardship to the children, for the 
heirs have no right to the estate while the ancestor lives. 
But if the blood is corrupted so as to cut off the connection 
between children of the traitor and his ancestors, and prevent 
any inheritance descending to the former from the latter after 
his death, the children would suffer. 

Punishment Mitigated by the Constitution.—Our Consti¬ 
tution mitigates the severity of this punishment. It pro¬ 
vides that the offender himself shall bear all the punishment. 
There shall be no corruption of blood except during the life 
of the party attainted. As Mr. Madison says, “ The Con¬ 
vention have restrained Congress from extending the conse¬ 
quences of guilt beyond the person of its author.” 1 If there 
should be any attainder in the punishment of treason, it must 

1 Federalist, No. 43. 


228 


THE CONSTITUTION 


b. m. *. 


not be allowed to work corruption of blood after the death of 
the traitor. The corruption of blood must then cease, and 
there can be no new forfeiture. It does not mean, as some 
have supposed, that if the property of the traitor has been 
confiscated it must be restored to his heirs at his death. This 
would involve the absurdity of forbidding the taking away, 
except for the short period between sentence and execution, 
the property of one who had been guilty of the highest offense 
known to society, while minor offenses are often punished 
with heavy fines. 

The attainder spoken of in this clause must be that con¬ 
nected with the judgment pronounced by a court, and not a 
legislative attainder. For we have already seen that Congress 
is forbidden, as also the States, from passing any bill of at¬ 
tainder. Congress might provide for a judicial attainder in 
the case of treason, but the effects of this attainder must be 
limited to the life of the offender. 

Forfeiture Misunderstood.—By act of April, 1790, Con¬ 
gress provided that treason should be punished with death by 
hanging. In 1862 (July 17th) an act of Congress declared 
that the traitor should suffer death and his slaves should be 
made free ; or, at the discretion of the court, he should be 
imprisoned for not less than five years, and fined not less than 
ten thousand dollars, and all his slaves be made free, the fine 
to be levied on any of his property, real or personal, excluding 
slaves. This act was accompanied by a joint resolution, pro¬ 
viding that no punishment under the act should be so con¬ 
strued as to work a forfeiture of real estate of the offender 
beyond his natural life. This resolution was passed because 
the President regarded the clause of the Constitution now 
under consideration as forbidding the forfeiture of real prop¬ 
erty except during the life of the offender. 

The act of 1790, referred to above, provides for punishing 
a variety of offenses besides treason. Some of these were to 
be punished with death, but most of them with fine and im- 


8. III. 9. 


THE JUDICIARY—TREASON 


m 


prisonment, the fines ranging from one hundred to five thou- 
sand dollars. Section 24 of the act provides that “no con¬ 
viction or judgment for any of the offenses aforesaid shall 
work corruption of blood or any forfeiture of estate.” The 
language is that no conviction or judgment shall work any 
forfeiture of estate. To interpret it as the President in 1862 
interpreted the clause of the Constitution relating to the pun¬ 
ishment of treason would be to make it contradict the other 
sections of the same act, which prescribe punishments by 
fines, i. e., by the forfeiture of estate. 

The meaning of the act of 1790 is obviously this: The 
offenses mentioned are to be punished, some with death, some 
with fines and imprisonment; but no conviction or judgment, 
as such, or by its own force , is to work corruption of blood or 
any forfeiture. The offender must give up so much of his 
estate as is needed to pay the finje imposed ; but, that being 
done, there is to be no loss of additional property, in the way of 
forfeiture, as a consequence of conviction or judgment. Had 
Congress made the punishment of treason to be death and 
the absolute forfeiture of all the estate of the traitor, they 
would not have gone beyond the authority conferred on them 
by the Constitution. They preferred not to go to the limit 
assigned them. They enacted that attainder of treason should 
not work any corruption of blood or forfeiture. But at the 
same time they made an absolute confiscation of property for 
offenses much less heinous than treason. 1 

No Treason against a State.—As treason is a crime against 
sovereignty, a violation of one’s allegiance, there can be no 
treason against a particular State. 2 If a State, by its courts, 
punishes treason, it must be not as treason against itself, but 
as treason against the Union ; and in this view the propriety 
of that State legislation which affixes to it particular penalties 
is doubtful. 3 

> For views similar to those here advocated, see Story, Duer, Farrar, Tiffany, Mans¬ 
field, and others. For the opposite view, see Yeaman, Appendix. 

9 Elliott, V., page 449. 3 Jameson, page 56. 


230 


THE CONSTITUTION 


4. L 


ARTICLE IV. 

Section i. — Full faith and credit shall he given in each 
State to the public acts, records, and judicial proceedings of 
every other State . And the Congress may, by general laws, 
prescribe the manner in which such acts, records, and pro¬ 
ceedings shall be proved, and the effect thereof. 

“Full faith and credit” means that credit which the State 
itself gives to the acts, etc., when proved. 

“ The public acts ” are the legislative acts, the enacted laws 
of a State. 

“ Records ” are the registration of deeds, of wills, legislative 
journals, etc. 

“Judicial proceedings” are the proceedings, judgments, 
orders, etc., of courts. 

Whenever the laws and acts of one nation come into exam¬ 
ination in any forensic controversy in another nation, they 
must be proved like other facts. The Constitution provides 
that this shall not be necessary as between the different States 
of the Union ; that the judgments, etc., of one State need 
not be reexamined in another. But the manner in which the 
acts and judgments shall be authenticated, and what their 
effect shall be, is to be left for Congress to declare. 

In 1790 and 1804 Congress enacted that the acts of the legislature of a 
State or Territory should be authenticated by its seal; and that the records 
of a court should be proved by the attestation of the clerk and the seal of 
the court annexed (if there be a seal), with the certificate of the judge. It 
was provided, also, that the records thus authenticated should have such 
faith and credit in every other court in the United States as they have in 
the courts of the State from which they are taken. 

Sec. 2, Clause I.— The citizens of each State shall be 
entitled to all privileges and immunities of citizens in the 
several States . 


* n. i. 


PRIVILEGES OF CITIZENS 


231 


Who are Citizens ?—Though the word citizen is repeatedly 
used in the Constitution, it is nowhere defined in the original 
instrument. But the Fourteenth Amendment says, “ All 
persons born or naturalized in the United States, and subject 
to the jurisdiction thereof, are citizens of the United States 
and of the State wherein they reside.” Prior to the abolition 
of slavery, only free inhabitants born in the United States, 
or naturalized under the laws of Congress, would have been 
considered citizens. Every citizen of the United States is a 
citizen of the State where he resides. One may be a citizen 
of the United States and not a citizen of any particular State, 
because his residence may be not in a State, but in a Territory 
or in the District of Columbia. But whenever a citizen of the 
United States becomes a resident of a State, he becomes a citi¬ 
zen of it also. 

A Citizen’s Rights in Another State —This clause of the 
Constitution provides that a citizen of one State, on removing 
to another, shall enjoy all the rights and privileges of the citi¬ 
zens of that State. But he can not claim any which were 
peculiar to the State he has left. He can not carry the local 
laws of one State with him when he removes to another. 

This clause also provides that the person and property of a 
citizen of one State shall be secure in every other State. No 
other part of the Constitution has been so frequently or fla¬ 
grantly violated as this. Indeed, until 1866 no law had been 
enacted by Congress for carrying its provisions into effect. 
Early in that year a bill was passed, entitled “ An Act to pro¬ 
tect all persons in the United States in their civil rights, and 
furnish the means of their vindication.” It was vetoed by 
President Johnson, but receiving the requisite two thirds vote 
of each house, became a law April 6th, 1866. It is known as 
the Civil Rights Bill, 

It declares that all persons born in the United States, and not subject to 
any foreign power, excluding Indians not taxed, are citizens of the United 
States ; and all such citizens, of every race and color, without regard to 


232 


THE CONSTITUTION 


4. n. i. 


any previous condition of slavery or involuntary servitude, shall have the 
same right, in every State or Territory in the United States, to make and 
enforce contracts, to sue, be parties, and give evidence; to inherit, pur¬ 
chase, lease, sell, hold, and convey real and personal property ; and to full 
and equal benefit of all laws and proceedings for the security of person 
and property. 

Dred Scott Case. — This act of Congress is, obviously 
enough, in conflict with the language of Judge Taney in the 
Dred Scott case, that “a free negro of the African race whose 
ancestors were brought to this country and sold as slaves, is 
not a citizen in the meaning of the Constitution.” But it has 
been maintained by other members of the Supreme Court that 
this point was not before the court; and therefore the lan¬ 
guage above quoted is not to be regarded as the decision of 
that body. 

The study of our governmental history shows that the 
emancipation of a slave was exactly equivalent to the natural¬ 
ization of an alien or foreigner. As naturalization removed 
the disqualification of the alien, so emancipation removed 
that of the slave. This was the decision of the supreme 
court of North Carolina, in 1836, as delivered by Judge 
Gaston, and it was reaffirmed by the same court in 1848. 

That the language of Judge Taney, to the effect that “ free negroes 
were not regarded in any State as citizens at the time of the Declaration 
of Independence and the formation of the Constitution,” is not in accord¬ 
ance with the teachings of history, two facts will suffice to show. At the 
time of the ratification of the Articles of Confederation, all free, native- 
born inhabitants of the States of New Hampshire, Massachusetts, New 
York, New Jersey, and North Carolina, though descended from African 
slaves, were not only citizens of those States, but such of them as had the 
other necessary qualifications possessed the franchise of electors on equal 
terms with other citizens. 1 The other fact is this. On the 25th day of 
June, 1778, when the Articles of Confederation were under discussion in 
Congress, a motion was made that the word “ white ” should be inserted 
between the words u free ” and “ inhabitants ” in the fourth article. Two 
States voted for the amendment, eight voted against it, and the vote of 
1 Judge CurtiB, in Scott vs. Sandford. 


4. n. s. 


FUGITIVES FROM JUSTICE 


233 


one State was divided.’ This fourth article corresponds to the clause of 
the Constitution which we are now considering. It reads, in part: “The 
free inhabitants of each of these States, paupers, vagabonds, and fugitives 
from justice excepted, shall be entitled to all privileges and immunities of 
free citizens in the several States.” 

Clause 2 .—A person charged in any State with treason, 
felony , or other crime, who shall flee from justice , and be 
found in another State, shall, on demand of the executive 
authority of the State from which he fled, be delivered up to 
be removed to the State having jurisdiction of the crime. 

Fugitives from Justice.—A State has no authority beyond 
its own limits. If a criminal should escape from one State to 
another, the former could not arrest him, because he is be¬ 
yond her boundaries, and the latter could not punish him for 
offenses committed beyond her jurisdiction. It was necessary 
that a power whose authority extended over the whole country 
should make provision for the arrest and punishment of fu¬ 
gitives from justice.. 

Before any law had been enacted by Congress to carry into 
effect this clause of the Constitution, the governor of Pennsyl¬ 
vania made a requisition upon the governor of Virginia to 
deliver up an escaping criminal. The requisition was refused 
by the latter on the ground that the clause gave him no au¬ 
thority to deliver up the fugitive. The case was referred by 
the governor of Pennsylvania to the President, and by him 
laid before Congress. In consequence, the act of 1793 was 
enacted. This act provides that the demand be made on the 
executive authority of the State to which the fugitive has 
fled. Accompanying the demand should be a copy of the in¬ 
dictment found, or an affidavit made before a magistrate, and 
certified as authentic by the governor making the demand. 
The arrest is then made by the order of the governor of the 
State to which the criminal has fled, and the fugitive is de- 


1 Jour. Coat. Cong., 1V-, 272. 


234 


THE CONSTITUTION 


4. II. 3. 


livered to the agent of the former. All the expenses must be 
paid by the State from which the escape was made. The act 
applies to the Territories as well as to the States. 

A fugitive from justice may be arrested and detained prior 
to the demand by the governor. The executive upon whom 
the demand is made can not go behind the demand and accom¬ 
panying charge of the governor demanding, to determine 
whether, by the laws of his own State, the offense charged 
is a crime. 

Extradition.—The giving up by one nation of a fugitive 
from justice escaping from another nation, is called extradi¬ 
tion. No nation can demand of another the surrender of a 
criminal except in consequence of express treaty stipulations. 
Such treaties now exist between the United States and almost 
all other civilized nations. 

Clause 3 .—No person held to service or labor in one State , 
under the laws thereof, escaping into another, shall, in conse¬ 
quence of any law or regulation therein , be discharged from 
such service or labor, but shall be delivered up on claim of the 
party to whom such service or labor may be due. 

Fugitives from Labor.—The act of February 12th, 1793, 
was passed to carry into effect this clause as well as the pre¬ 
ceding one. A “ person held to service or labor” might be a 
slave or an apprentice. This clause, and that part of the act 
of Congress relating to fugitives from labor, had special refer¬ 
ence to slaves, though the word slave does not occur in the 
Constitution. The law of 1793 was amended in 1850, and 
made still more objectionable to the friends of freedom. The 
commissioners before whom alleged fugitives were to be taken 
might order any citizens to assist in returning fugitive slaves ; 
and any person hindering such return could be fined one 
thousand dollars and imprisoned six months, and might for¬ 
feit, in addition, one thousand dollars to the owner for each 
fugitive so lost. The commissioner was to have a fee of five 


4. m. 1. 


NEW STATES AND TERRITORIES 


235 


dollars if the fugitive was not returned to the claimant, and 
ten dollars if he was returned. The harsh features of this 
law of 1850, with the repeal of the Missouri Compromise, and 
the Dred Scott decision, had much to do in directing public 
attention to the evils of slavery, and in preparing the people 
to meet the conflict of 1861. 

Thirteenth Amendment.—The law of 1850, and those sec¬ 
tions of the law of 1793 which related to fugitive slaves, were 
repealed June 20 th, 1864. On the 1 st of February, 1865, 
Congress proposed an amendment to the Constitution, abol¬ 
ishing slavery throughout the United States. On the 18th of 
December, of the same year, this was declared to have been 
ratified by the legislatures of three fourths of the States. It 
is the Thirteenth Amendment. Thus was the question of 
slavery at last settled—a question which has caused more 
disturbance in our government than all other questions com¬ 
bined. 

Sec. 3, Clause I .—New States may be admitted by the 
Congress into this Union ; but no new State shall be formed 
or erected within the jurisdiction of any other State; nor 
any State be formed by the junction of two or more States, or 
parts of States , without the consent of the legislatures of the 
States concerned as well as of the Congress. 

Clause 2.— The Congress shall have power to dispose of 
and make all needful rules and regulations respecting the ter¬ 
ritory or other property belonging to the United States ; and 
nothing in this Constitution shall be so construed as to preju¬ 
dice any claims of the United States, or of any particular 
State. 

New States before the Constitution. — The articles of 
Confederation made no general provision for the admission 
of new States. Canada might come into the Union on ac¬ 
ceding to the Articles of Confederation and joining in the 
measures of the United States; but no other colony could 


236 


THE CONSTITUTION 


4. m. *. 


be admitted unless by the agreement of nine States. Ver¬ 
mont declared herself independent in 1777, and made appli¬ 
cation for admission ; but the application was not granted, 
as Congress was unwilling to offend the States of New York 
and New Hampshire, both of which claimed it as within their 
jurisdiction, and opposed its admission into the Union. 1 

Thirty-five Admitted.—From the adoption of the Consti¬ 
tution to the year 1913 thirty-five new States were admitted: 
the first, Vermont, in 1791; the last, Arizona, in 1912. No 
State has been formed by the junction of two or more States, 
or parts of States, while four have been created within the 
jurisdiction of other States: Vermont from New York 
(claimed also by New Hampshire), Kentucky from Virginia, 
Maine from Massachusetts, and West Virginia from Virginia. 

The language of the Constitution is, new States may be ad¬ 
mitted into the Union. It is not imperative upon Congress 
to admit them. Nor can Congress compel the people of a 
Territory to become a State. For obvious reasons, however, 
statehood has been regarded as desirable, and as such has been 
eagerly sought by the Territories. 

Claims to the Unsettled Territory—After the colonies 
threw off the yoke of Great Britain,*the unsettled territory 
within the limits of the United States became a subject of 
grave concern. Some of the States claimed that those lands 
were within their chartered limits, and that to them belonged 
both soil and jurisdiction. Others insisted that, as the war 
had been carried on under a common government, and for 
the common interest, this territory should be considered as 
the common property of the nation. 

Action of Congress.—On the 6th of September, 1780, Con¬ 
gress pressed upon the States having claims to the western 
country, a surrender of a portion of their territorial claims, 
as they could not be preserved entire without endangering 
the stability of the general Confederacy. A month later (Oc- 

1 Pitkin, n., page 314. 


4. in. a. new states and territories 237 

tober 10th) Congress resolved that the unappropriated lands 
that might be ceded or relinquished to’the United States by 
any particular State, pursuant to the recommendation of Con¬ 
gress of September 6th, should be disposed of for the common 
benefit of the United States, and be settled and formed into 
distinct republican States. 

Cessions by the States.—In accordance with this recom¬ 
mendation, cessions were made by different States, as follows : 
New York, March 1 st, 1781; Virginia, March 1 st, 1784 ; 
Massachusetts, April 19th, 1785 ; Connecticut, September 
14th, 1786 ; South Carolina, August 9th, 1787. These were 
made before the formation of the Constitution. North Caro¬ 
lina and Georgia had not relinquished their claims when that 
instrument was adopted, but they did so afterward : North 
Carolina, February 25th, 1790, and Georgia, April 24th, 1802. 
The language of Clause 2 , that the claims of any particular 
State should not be prejudiced, had reference to the claims 
of the last two States named above. 

Power of Congress over the Territory.—The Constitution 
confers on Congress full power to make laws respecting the 
territory belonging to the nation and not yet formed into 
States. Without a specific grant to that effect in the Consti¬ 
tution, Congress would doubtless have had this power. The 
first law, indeed, organizing a Territory, was enacted before 
the Constitution was adopted—the Ordinance for the Govern¬ 
ment of the Territory of the United States North-west of the 
River Ohio, July 13th, 1787. 

The Ordinance of 1787 .—As early as April, 1784, after the 
cessions by New York and Virginia of their claims, the Con¬ 
tinental Congress passed a resolution providing a plan of tem¬ 
porary government for the western territory. There was, 
however, no organization of government under this act, 
though it remained on the statute book till repealed by the 
Ordinance of 1787. This celebrated ordinance, regarded, after 
the Declaration of Independence, as the most important act 


238 


THE CONSTITUTION 


4. IH. 2. 


of the Continental Congress, and eulogized in the highest 
terms by Webster, Chase, Bancroft, and others, was enacted 
with immediate reference to a colony which General Rufus 
Putnam and his associates of the Revolutionary Army pro¬ 
posed to plant in the valley of the Ohio. Their proposal to 
purchase of Congress a million and a half of acres and form 
a settlement, was followed immediately by the passage of this 
ordinance. It was drawn in accordance with their ideas of a 
suitable government, and some of its most important features 
were undoubtedly the suggestions of the Rev. Manasseh Cut¬ 
ler, who negotiated the purchase for the company, of which 
he was one of the directors. 1 

Acquisition of Territory.—The framers of the Constitu¬ 
tion introduced these two clauses of Section 3 into the Con¬ 
stitution, that the resolution of Congress, of the 10th of Oc¬ 
tober, 1780, might be carried into effect; and they had 
primary reference to the territory then claimed by different 
States. But the language is broad enough to cover whatever 
territory the United States might subsequently acquire. The 
Constitution nowhere in express terms authorizes the gen¬ 
eral government to enlarge the national domain by purchase, 
by conquest, by annexation, or in any other mode ; but this 
is one of the powers incident to national sovereignty, and as 
such it has been repeatedly exercised by the United States, 
though the matter has been the subject of dispute. Louisiana 
was purchased under the administration of Mr. Jefferson ; 
Florida, under that of Mr. Monroe ; Texas was annexed 
under the presidency of Mr. Tyler; and the territory which 
was obtained from Mexico was conquered under Mr. Polk. 
All these gentlemen were in theory strenuous advocates of the 
doctrine that our general government is one of limited and 
enumerated powers. 

The constitutionality of the acquisition of territory was 
again questioned at the close of the war with Spain, in 1898, 

1 The Ordinance of 1787 may be found in the Appendix. 


4. in. 2 . 


NEW STATES AND TERRITORIES 


239 


in regard to Porto Rico and the Philippine Archipelago. 
By the treaty of Paris, ratified in 1899, these islands were 
ceded to the United States, which in turn paid twenty million 
dollars to Spain. Many opposed this action as unconstitu¬ 
tional, holding that even the Louisiana and Texas precedents 
did not sustain the acquisition of territory thousands of miles 
from our shores. The Hawaiian Islands had been annexed a 
few months previous, despite strenuous opposition which had 
persisted for several years previously. As no war attended 
the Hawaiian revolution, and as the Hawaiian Republic 
sought annexation to the United States, the issue was not so 
pointed as in the case of the Philippine Islands. Questions 
like these are settled by the march of history rather than by 
the logic of jurists. 

Ordinance of 1787 Continued. — There is no doubt that the United 
States, like other nations, can acquire territory and govern it Though 
the Articles of Confederation said nothing about the government of terri¬ 
tory, Congress exercised this power, as we have seen, and passed.the cele¬ 
brated Ordinance of 1787, while the Convention that framed the Constitu¬ 
tion was in session. After the Constitution was adopted, Congress did not 
deem it necessary to reenact that ordinance, but merely adapted it to the 
new Constitution, by providing that the territorial officers who. before, were 
appointed by Congress, should now b* appointed by the President and Sen¬ 
ate, and should report to the President instead of to Congress. This act, 
which was passed August 7th, 1789, shows that the members of that first 
Congress under the Constitution regarded the ordinance as still binding. 

This ordinance, for the government of the Northwest Ter¬ 
ritory, was for a long period the model after which other 
Territories were organized. If the Territory was in the 
South, that clause of the ordinance which prohibited slavery 
was excepted ; if the Territory was in the North, the govern¬ 
ment was to be in all respects similar to that provided by the 
Ordinance of 1787. 

Power as to Slavery in the Territories.—Including the 
act of August 7th, 1789, eight separate acts were passed, ex¬ 
tending through a period of over sixty years, each one pro- 


240 


THE CONSTITUTION 


4 m. i 


hibiting slavery in tlie Territory organized. The power of 
the general government to make all needful rules and regula¬ 
tions for the government of the Territories was not called in 
question till the winter of 1856-57, on the trial of the Dred 
Scott case. In giving the decision of the court in that case, 
Judge Taney said, among other things which referred to mat¬ 
ters not before the court, that Congress had no power to pro¬ 
hibit slavery in a Territory of the United States. Even if 
that question had been before the court, being a political 
question and not a judicial one, it was one over which that 
department of the government had no control. 

In the same opinion the court held that u the propriety of admitting a 
new State into the Union is committed to the sound discretion of Congress, 
and that the power to acquire territory must rest upon the same discre¬ 
tion.” The power to govern a territory was not inferred, however, from 
the clause of the Constitution now under consideration, but was regarded 
as the inevitable consequence of the right to acquire territory, which last 
right, as there is no allusion to it in the Constitution, must be a right of 
general sovereignty. Mr. Douglas held that the power of Congress to 
govern the Territories was to be found in the clause authorizing the ad¬ 
mission of new States; if States may be admitted into the Union, Ter¬ 
ritories may be governed so as to fit them to become States. 1 It is ad¬ 
mitted, then, by all that Congress has the exclusive right to govern the 
Territories. 2 

Territorial Government.—As soon as new territory is ac¬ 
quired by the United States, the right of sovereignty is vested 
in the nation. The authority of the nation over such territory 
is absolute, except as modified by the treaty with the nation 
from which it was obtained. The people of the territory 

1 Report on Kansas. 

* The constitution of the Confederate States provided for the acquisition of new terri¬ 
tory. and its government by Congress. But slavery was recognized and protected, and 
the inhabitants of other States and Territories might take their slaves into every Terri¬ 
tory. That constitution provided that other States might be admitted into the Confed¬ 
eracy by a vote of two thirds of the whole House of Representatives, and two thirds of 
the Senate—the Senate voting by States. (McPherson’s History of the Rebellion , 1860-65, 
page 99.) 


1 UL 2. 


NEW STATES AND TERRITORIES 


241 


have no governmental power except as granted by Congress. 
Whenever Congress sees fit it may organize a territorial gov¬ 
ernment. Such a government usually consists of a legisla¬ 
ture chosen by the people, a governor appointed by the Pres¬ 
ident and Senate, and judges appointed in the same manner. 
But the territorial authority, whether legislative, executive, 
or judicial, derives its sanction from the sovereignty of the 
nation. 

The Status of the Residents in a Territory.—According 

to our governmental system the people of a Territory, while 
they have civil rights and are entitled to protection, have no 
power to govern the Territory—that is, to govern themselves— 
save as it is given them by the general government; and they 
can not in any way participate in the general authority of 
the nation. But whenever a Territory is admitted into the 
Union by Congress it becomes a State, and as such its people 
are authorized under the Constitution to manage their local 
affairs, and to participate in the administration of the nation. 
When a citizen of a State goes to reside in a Territory, he 
leaves behind him most of his political privileges, though not 
his civil rights. He has no longer any voice in the election 
of President or of a member of Congress. He can not take 
part in electing a governor of the Territory. 

Relation of a Territory to the Union.—A Territory is a 
part of the domain of the United States ; it is a part of the 
United States considered as the name of the country, but it is 
not in the Union in the sense in which a State is. Nor can 
it come into the Union except as it is admitted by Congress. 
It may frame a State constitution, which its people may 
ratify ; but that does not constitute it a State. The consent 
of Congress is indispensable to enable it to become an inte¬ 
gral part of the Union. But when admitted, and thus con¬ 
stituted a State, it becomes a political corporation for local 
purposes, and a part of the great political organization whose 
sway extends over the whole domain. Our political privi- 
A. C.—16 


242 


THE CONSTITUTION 


4. ill. 2. 


leges are thus largely dependent upon our belonging to a 
State. 

The Surrender of Rights by a State—As a Territory is 
not compelled to become a State, so a State is not compelled 
to remain a State. If a State, as a political organization, re¬ 
fuses to consider itself any longer a member of the great 
national body, and by deliberate act withdraws from the 
Union, what then ? The soil is still a part of the domain of 
the United States, and the people who dwell upon it are still 
subject to the nation. They have simply given up their 
privilege of managing their own local affairs, and all right to 
participate in the government of the nation. They have no 
more political authority than the people of a Territory before 
its admission into the Union, and they can have none till 
Congress confers it upon them. 

Out of the Union, a State not a State.— There is no such 
political entity known to our governmental system as a State 
out of the Union. The moment the withdrawal takes place, 
the existence of the State as such ceases. It is no longer a 
“ State.” If its people can maintain their independence by 
the sword, they may frame a government and call it what 
they please. But whether successful or unsuccessful, it is no 
longer one of the United States of America. It is no longer 
a State in the American Union. If it fails to gain its inde¬ 
pendence, it is not (( in the Union, but under it.” 1 

Mode of Admitting States.—There has not been entire 
uniformity in the mode of admitting new States, but the fol¬ 
lowing is the most usual, and may be considered the regular 
mode : when a Territory has a sufficient population, a me¬ 
morial is sent to Congress, asking for leave to form a State 
constitution, and to be admitted into the Union. Congress 
then passes an act, called “ an enabling act,” authorizing the 
inhabitants to form a constitution. A convention is held for 
this purpose, and the constitution thus formed is presented 

1 Brownson, Chapter xii. 


4. IV. 


THE FORM OF GOVERNMENT 


243 


to Congress for its approval. If the proceedings have been 
regular, and the constitution is free from objection, Congress 
passes an act admitting the new State into the Union “on 
an equal footing with the original States in all respects what¬ 
ever.” 

The case of Louisiana may be taken as an example. In March, 1804, 
the region purchased of France, under the name of Louisiana, was 
erected by Congress into two Territories—the District of Louisiana and 
the Territory of Orleans. In February, 1811, an act was passed “ to 
enable the people of the Territory of Orleans to form a Constitution and 
State government,” etc. April 8th, 1812, an act was passed, to take 
effect April 30th, “ for the admission of the State of Louisiana into the 
Union, and to extend the laws of the United States to the said State.” 

Territories not Provinces. —This power to admit new States 
into the Union, and to make them equal participants with 
the older States in the government, is “ one of the new prin¬ 
ciples introduced into our system, and is, perhaps, the most 
anomalous and most influential upon its future destiny. All 
the nations of antiquity held immense 'provinces , which con¬ 
stituted a part of the state for purposes of revenue and 
armies, but were never admitted upon terms of equality , and 
whose inhabitants were never citizens. The idea of consti¬ 
tuting a government , to be increased as to the source of law — 
by its own colonization, or by recruits from abroad, is wholly 
new.” 1 

Section 4 . — The United States shall guarantee to every 
State in this Union a republican form of government, and shall 
protect each of them against invasion ; and on application of 
the legislature, or of the executive {when the legislature can not 
be convened), against domestic violence. 

The Guaranty of Republican Government —This clause 
makes a republican government necessary in every State. It 
could not be obligatory upon the United States to guarantee 

1 Mansfield’s Political Manual , page 192. 


244 


THE CONSTITUTION 


4. IV 


it to the individual States, unless it was incumbent on them 
to have such a government. It is equivalent to saying that 
“ no other shall be permitted to be established .” 1 The 
clause prescribes a republican government for all the States, 
protection against hostile invasion, and, on request, against 
domestic violence. Every State must have a republican gov¬ 
ernment, and if at any time a State is destitute of one, the 
general government is bound to provide it . 2 

This is the only instance in the Constitution where the government has 
a duty enjoined upon it, while the particular department is not men¬ 
tioned. Here the obligation is from the United States to the States; but 
whether to be exercised by the President or by Congress is one of the 
questions that have grown out of the reconstruction measures . 3 In the 
case of Rhode Island, the Supreme Court held that “ It rests with Con¬ 
gress to decide what government is the established one in a State. For, 
as the United States guarantee to each State a republican government, 
Congress must necessarily decide what government is established before 
it can determine whether it is republican or not. And when the senators 
and representatives of a State are admitted into the councils of the 
Union, the authority of the government under which they are appointed, 
as well as its republican character, is recognized by the proper constitu¬ 
tional auth jrity. And its decision is binding on every other department 
of the government, and could not be questioned in a judicial tribunal.” 4 

What is Republican Government?—The Constitution does 
not define a republican government. The national govern¬ 
ment may be assumed to be republican in form, and thus 
a model for the States. Mr. Madison says : “ We may define 
a republic to be a government which derives all its powers 
directly or indirectly from the great body of the people, and 
is administered by persons holding their offices during pleas¬ 
ure, for a limited period, or during good behavior .” 5 “ The 
principle of republicanism is the equal right of the people, 
the citizens, all the members of the body politic. In theory 
it is the government of public opinion. . . . The fun- 

1 Curtis, II., page 4T2. s Farrar, page 221. * Paschal, page 242. 

4 T Howard, 42. * Federalist, No. 39. 


4. IV. 


THE FORM OF GOVERNMENT 


246 


damental principles of right and justice for the government, 
the representative character of the governors, and their prac¬ 
tical responsibleness to the governed, are the essentials of 
republicanism.” 1 

State Constitutions Referred to. —The Constitution indirectly requires 
various provisions in the State governments by enjoining duties. The 
senators of the United States are to be elected by the State legislatures. 
Members of the House of Representatives are to be elected by the same 
electors as vote for the members of the most numerous branch of the State 
legislature. The executives of the States are often referred to. The 
judges are to take an oath to obey the Constitution of the United States. 
Thus, the States must have the three great departments of government— 
the legislative, the executive, and the judicial. The legislature must be in 
two branches, and the most numerous branch must be elected by the peo¬ 
ple. The States are supposed to have written constitutions (Article VI.). 

A State Entitled to Protection.—It would have been the 
duty of the United States to protect each State against inva¬ 
sion and domestic violence had not this special provision been 
inserted, for one of the ends for which the Constitution was 
ordained was to provide for the common defense. In the 
Convention that framed the Constitution, “Mr. Rutledge 
thought it unnecessary to insert any guaranty. No doubt 
could be entertained but that Congress had the authority, if 
they had the means, to cooperate with any State in subduing 
a rebellion. It was and would be involved in the nature of 
the thing.” 2 

“ It may well be doubted if any dereliction of duty on the part of the 
officers of the State, whether legislative or executive, could afford an 
adequate excuse for the general government in suffering the regular ad¬ 
ministration of the authorized republican government of a State to be 
overthrown and destroyed, or otherwise substantially interfered with 
by domestic violence, under circumstances that obviously required their 
authoritative interposition for the preservation of the peace and good 
order of the community.” 3 

What is said on pages 197, 198 concerning the Chicago riots may be 
1 Farrar, page 223. 9 Elliot, V., page 333. a Farrar, page 229. 


246 


THE CONSTITUTION 


4. IV. 


referred to here. It may be said that at Chicago the national forces were 
not employed to protect the State of Illinois, but the United States. There 
is no question of this distinction. 

Eleven States Secede in i860 and 1861. —The clause of 
the Constitution now under consideration was brought prom¬ 
inently into notice in the secession and subsequent reconstruc¬ 
tion of eleven States of the Union. In the six months com¬ 
mencing with December, 1860, ordinances of secession, so 
called, were passed by conventions in South Carolina, Missis¬ 
sippi, Florida, Alabama, Georgia, Louisiana, Texas, Arkansas, 
Virginia, Tennessee, and North Carolina. These conventions 
were entirely revolutionary, and depended for their justifica¬ 
tion upon success. But success was not theirs. Their armies 
were defeated after an immense expenditure of blood and 
treasure. The doctrine of the right of secession, or, which is 
the same thing, of absolute State sovereignty, which they had 
determined to submit to the arbitrament of the sword, had 
been proved to be utterly untenable, and their States had 
been placed in positions entirely abnormal. 

Their Anomalous Condition.—“ Here, then, were brought again into 
relations of practical subjection to the Union certain integral populations, 
which had once been Constitutional States, but which, having by truancy 
from Constitutional courses lost something necessary to that character, 
were such no longer—were, indeed, little more than ‘ geographical denom- 
inations’; communities which, although as much in the Union, territori¬ 
ally, as ever, were properly neither Constitutional States nor Constitutional 
Territories, but States which had, sua sponte, for purposes of ambition, 
divested themselves of their Constitutional apparel and donned that of 
treason and rebellion, and so had forfeited their prerogative as States to 
participate in governing the Union, and been relegated to a condition anal¬ 
ogous to that of Territories—a condition in which they belonged to the 
Union, but had rightly no governing function whatever, local or general .” 1 

Reconstruction in Virginia and in Missouri _The work 

of reconstruction had commenced in some of the States before 


1 Jameson, page 244. 


4. IV. 


THE RECONSTRUCTION OF STATES 


247 


the close of the war. A large majority of the legislature of 
Virginia adhered to the Confederacy, but Congress recognized 
as the lawful legislature a minority which assembled at Wheel¬ 
ing. This body sent senators to Congress, and gave consent 
to the formation of the new State of West Virginia. In Mis¬ 
souri the governor and the majority of the legislature adhered 
to the Confederacy, and passed an ordinance of secession. 
The State was admitted as a member of the “ Confederate 
States,” and continued to be represented in the Confederate 
Congress till the overthrow of the Confederacy. But a con¬ 
vention, which had been called by the legislature of Missouri 
in 1860, having refused to pass an'hct of secession, was recon¬ 
vened in July, 1861. This body took upon itself the govern¬ 
ment of the State, and was recognized as the lawful authority 
by the general government. Technically, Missouri was never 
“out of the Union.” 

The Proclamation of 1863 .—In December, 1863, President 
Lincoln issued a proclamation to the effect that when one 
tenth of the qualified voters of a State, having taken the re¬ 
quired oath, should reestablish the State government, repub¬ 
lican in form and in conformity with the oath, it should be 
recognized as the true government of the State, and should 
receive the benefits of the constitutional guaranty embodied 
in this clause which we are now considering. In pursuance 
of this proclamation, Louisiana and Arkansas provided them¬ 
selves with loyal State governments. But these States having 
been reconstructed through the military power, the mode 
adopted was not entirely satisfactory to Congress, and the 
States were not allowed representation in that body. 

Tennessee Restored in 1866 .—The first State that was 
fully restored to her former relations to the Union was Ten¬ 
nessee. On the 24th of July, 1866, Congress passed a joint 
resolution “ That the State of Tennessee is hereby restored 
to her former, proper, practical relations to the Union, and 
is again entitled to be represented by senators and representa- 


248 


THE CONSTITUTION 


4. IV. 


tives in Congress.” In the preamble to this resolution it is 
recited that the inhabitants of the State having been by act 
of Congress declared to be in a state of insurrection, the 
State government can be restored to its former political rela¬ 
tions in the Union only by the consent of the lawmaking 
power; that the people, by a large vote, had adopted and 
ratified a constitution abolishing slavery, and declaring void 
all ordinances and laws of secession and debts contracted 
under the same ; and had organized a State government 
under the new constitution, which had ratified the Thir¬ 
teenth and Fourteenth Amendments to the Constitution of 
the United States. 

Military Districts.—In March, 1867, an “Act to provide 
for the more efficient government of the rebel States” was 
passed, and later in the same month a supplementary act for 
the same purpose. This act divided these States into five 
military districts, each to be under the command of a mili¬ 
tary officer, who should be charged with the duty of protect¬ 
ing the inhabitants in person and property, of suppressing 
all disorder, and punishing crime. Criminals might be tried 
by the local civil tribunals, or, at the discretion of the com¬ 
manding general, by military commissions. The inhabitants 
were to be registered, and an election held for delegates to a 
convention in each State for the formation of a constitution. 
When such constitution should be approved by Congress, and 
the legislature elected under its provisions had ratified the 
Fourteenth Amendment, the State should become entitled to 
representation in Congress. 

Remaining States Restored, 1868-70 _Under this act 

Arkansas was admitted to representation in Congress as one 
of the States of the Union, June 22d, 1868, having framed 
and adopted a constitution of State government which Con¬ 
gress decided to be republican, and her legislature having 
ratified the Fourteenth Amendment. Three days later an act 
was passed providing for the conditional admission to repre- 


*. rv. THE RECONSTRUCTION OF STATES 24y 

sentation of North Carolina, South Carolina, Louisiana, 
Georgia, Alabama, and Florida. These had framed and 
adopted constitutions of republican government, and were to 
be fully admitted as States of the Union when they should 
have ratified the Fourteenth Amendment. In all the above 
cases, including Arkansas, the admission was upon one or 
more fundamental conditions prescribed by Congress. All 
the six States made the required ratification, and were ad¬ 
mitted without further legislation by Congress, except Georgia. 
Virginia was restored by act of Congress of January 26th, 
1870 ; Mississippi by that of February 23d ; Texas by that of 
March 30th ; and Georgia by that of July 15th of the same 
year. 

The Status of a Seceded State.—The action of the general 
government has fully settled this: that if a State takes the 
attitude of hostility to the nation, and refuses to acknowl¬ 
edge the supremacy of the Constitution of the United States, 
it forfeits its right to all participation in the government of 
the Union, and can be restored to its former position only by 
the distinct and formal action of the lawmaking power of the 
United States. The doctrine that the people of a State may 
take up arms against the nation, putting forth their whole 
energies and using all their resources to destroy the national 
life, and yet the moment they are subdued claim the right to 
send senators and representatives to Congress, is in the high¬ 
est degree preposterous. Yet this doctrine was gravely main¬ 
tained in the minority report of the Joint Congressional Com¬ 
mittee on Reconstruction, in June, 1866. And many worthy 
people seemed to be involved in inextricable confusion as to 
the relation of such States to the Union. 

A Logical Fallacy.—The argument assumes this logical 
form: A State is either in the Union or out of the Union. If in 
the Union, her people owe allegiance on the one hand, and are 
entitled to representation on the other. If out of the Union, 
they do not owe allegiance, nor are they entitled to represen- 


250 


THE CONSTITUTION 


4. nr. 


tation. The inference drawn from this is that if the people 
of a State are not allowed representation in Congress, there 
rests upon them no obligation of obedience ; and that when¬ 
ever they acknowledge the obligation of obedience, represen¬ 
tation is theirs as a matter of right. 

The fallacy lies here. The terms in the Union and out of 
the Union are not necessarily contradictory. A given district 
of the United States may be in one sense in the Union, and 
in another sense out of the Union at the same time. That 
portion of our country called Ohio was a part of the na¬ 
tional domain in 1800, and all the people living there were 
subject to the general government; in that sense the district 
and the people were in the Union. But the people had no 
participation in the general government, they had no sena¬ 
tors or representatives in Congress, they cast no votes for 
President in the election of that year ; in this sense they were 
not m the Union. A few years later Ohio was made a State 
by Congress, and then she was in the Union in both the 
senses stated. During the civil war South Carolina was not 
in the Union as Ohio was; she was not out of the Union as 
Mexico was. She had forfeited her right to a share in the 
government, but she was under the authority of the United 
States. 

Whatever forms of language may be used to describe the 
attitude of portions of the country in a state of insurrection 
and their relation to the United States, we may be sure that 
they will not be admitted to a representation in the councils of 
the nation till, in the judgment of Congress, such admission 
will not conflict with the well-being of the country. No 
claim to be admitted, based on the ground “ that a State once 
a State is always a State,” will have the slightest influence 
with those who shall, for the time being, be entrusted with 
the legislative power of the nation, no matter what may be 
their theoretic opinions as to the rights of States. The war 
was commenced in the interest of State sovereignty, and the 


6. I. 


AMENDMENTS 


251 


sword has settled the question. 1 Let us hope that many 
years may elapse before the general government shall again 
be under the necessity of exercising the power with which it 
is clothed by this section of the Constitution. 

ARTICLE V. 

Amendments. 

The Congress, whenever two thirds of loth Houses shall 
deem it necessary, shall propose amendments to this Constitu¬ 
tion, or, on the application of the legislatures of two thirds 
of the several States, shall call a convention for proposing 
amendments, which, in either case, shall he valid to all intents 
and purposes, as part of this Constitution, when ratified by 
the legislatures of three fourths of the several States, or by 
conventions in three fourths thereof, as the one or the other 
mode of ratification may be proposed by the Congress ; Pro¬ 
vided, that no amendment which may be made prior to the 
year one thousand eight hundred and eight shall in any 
manner affect the first and fourth clauses in the ninth section 
of the first article ; and that no State, without its consent, 
shall be deprived of its equal suffrage in the Senate. 

Definite provision is here made for amending the Constitu¬ 
tion. The Articles of Confederation could not be altered | 
except with the assent of all the States. The present Consti¬ 
tution, however, can be amended with the assent of three 
fourths. 

Two Modes for Proposing and Ratifying Amendments.— 

There are two modes of proposing amendments, and two 
modes of ratifying them. Congress itself may propose an 
amendment whenever two thirds of both houses deem it 
necessary; or, if two thirds of the State legislatures request 

1 “ It can not be too often repeated that the war was not primarily between freedom 
And slavery. It was the war of the Nation and the Confederacy.”—Mulford, page 34. 


252 


THE CONSTITUTION 


5. L 


it, Congress must call a convention for proposing amendments. 
Amendments thus proposed become valid when ratified by the 
legislatures of three fourths of the States, or by conventions 
in three fourths thereof. 

The First Mode Used.—Twenty-one amendments have been 
proposed since the adoption of the Constitution; all of them 
by the first mode. Two thirds of the legislatures have never 
yet applied to Congress to call a convention for this purpose. 
Seventeen of the amendments proposed have been ratified; 
and these ratifications have all been by the first mode—by the 
legislatures of the States, and not by conventions. The First 
Congress, which proposed twelve amendments, adopted this 
method of ratification, and its example has been followed in 
every other case. It is fortunate for the country that a con¬ 
vention has never been called for the purpose of proposing 
amendments. The organic law of a people should be framed 
with great care and altered with the utmost caution. A body 
of men convened for the purpose of suggesting alterations in 
the Constitution would be likely to magnify their office in 
proposing many amendments. 

Three Limitations.—There are three limitations to this 
power of amending the Constitution : First, the clause could 
not be altered which prohibited Congress from passing, prior 
to the year 1808, a law prohibiting the importation of slaves. 
Secondly, the clause prescribing the mode of levying a capi¬ 
tation or other direct tax could not be altered prior to the 
same year, 1808. Thirdly, no State, without its consent, 
could be deprived of its equal suffrage in the Senate. 

The first two limitations had reference to slaves, and be¬ 
came inoperative in 1808. The third was for the protection 
of the smaller States : to allow them the same representation 
in the Senate as the larger States. This provision was added 
at the very close of the Convention that framed the Constitu¬ 
tion. Mr. Sherman, of Connecticut, had before moved that it 
be added to the article, but Mr. Madison opposed it, and it was 


5. I. 


AMENDMENTS 


253 


lost. Mr. Gouvernenr Morris, of Pennsylvania, subsequently 
renewed the motion, and it was carried on Saturday, September 
15th. On Monday the Convention adjourned. This is the only 
provision of the Constitution which is virtually irrepealable. 

Proposed Amendment of 1861 .—In 1861 an amendment 
was proposed by two thirds of both houses, as follows : 
“No amendment shall be made to the Constitution which 
will authorize or give to Congress the power to abolish or 
interfere, within any State, with the domestic institutions 
thereof, including that of persons held to labor or service 
by the laws of said State.” Had this amendment been rati¬ 
fied, it would have been in terms an irrepealable provision. 
Whether it would have been so in fact it is not necessary now 
to inquire, as the ratification did not take place. 

The British Constitution may be altered by Parliament 
without any confirmation or ratification by the people. Par¬ 
liament is thus, says Mr. Fisher, a “ Convention to amend 
the Constitution, duly appointed, always in existence, and 
always competent to entertain proposals for needed alterations, 
with full authority to decide them. . . . It is a remarka¬ 

ble fact that, in conservative England, so steadfast in adher¬ 
ing to ancient usage, the power to make changes is always 
ready to act, without question or form or delay, and the or¬ 
ganic law is thus pliable and responsive to the wishes of the 
people ; whilst in democratic America, innovation is guarded 
against with such jealous care that it is doubtful whether the 
means provided by law for making needed changes can ever 
be employed.” 1 

Events show that this language is too strong ; for, since it 
was written, in 1862, five amendments have been made to 
the Constitution. Still, it may admit of question whether the 
difficulties in the way of amending our organic law are not 
too great for the best good of the nation. These difficulties 
are forcibly presented in the work just quoted from. 

i Fisher’s Trial of the Constitution, page 30. 


254 


THE CONSTITUTION 


6 . I. 


President’s Approval not Necessary. —When an amend¬ 
ment has been proposed by two thirds of both houses of Con¬ 
gress, is the approval of the President necessary ? It ( is only 
an expression of opinion by Congress that a certain amend¬ 
ment is desirable, which Article V. contemplates, while the 
final decision in regard to it is to be made by other bodies. 
Then, again, a vote of two thirds is good against the Presi¬ 
dent's veto. We should infer, therefore, that the approval 
of the President is not necessary. And the practice has been, 
for the most part, not to submit the resolutions to the Presi¬ 
dent for approval. 

The First Congress proposed twelve amendments. Nothing was said 
of the approval by the President. 1 The Amendment of 1798—the Elev¬ 
enth—was called in question because the President had not approved it; 
but the Supreme Court decided that his approval was not necessary. 2 
When the Amendment of 1804—the Twelfth—was before the Senate, it 
voted—twenty-three to seven—that the resolution be not submitted. That 
proposed at the second session of the Eleventh Congress was not sent to 
the President for his approval. The first instance in which an amendment 
proposed by Congress was sent to the President for his approval, was in 
March, 1861. That amendment—proposed as to slavery in the United 
States—was approved by President Buchanan. The Amendment of 1865 
—the Thirteenth—having been sent to the President through inadvertence, 
the Senate, without a division, decided that it should not constitute a prec¬ 
edent, and the secretary of the Senate was instructed not to communicate 
to the House of Representatives the notice of the approval. 

The Amendment of 1868—the Fourteenth—was not submitted to 
President Johnson for his approval, of which he reminded Congress in a 
message and intimated that he would have vetoed it had the opportunity 
been offered. 8 The Fifteenth Amendment—ratified in March, 1870—was 
not sent to the President; nor were the Sixteenth and Seventeenth amend¬ 
ments, ratified in 1913. This uniformity of action by Congress, and the 
decision of the Supreme Court, show that the approval of the President is 
not essential to a resolution proposing amendments to the Constitution. 

When an Amendment becomes Valid. —An amendment be¬ 
comes valid when ratified by the legislatures of three fourths 

1 Annals of Congress, I., page 779. * 3 Dallas, 878, 

8 Senate Jour., 39th Cong., 1st Sess., pago 503. 


6. I. 


AMENDMENTS—RATIFICATION 


255 


of the States ; that is, it becomes a part of the Constitution 
when the ratification has been made by the last State neces¬ 
sary to complete the constitutional number. Thus, the first 
ten amendments, proposed by the First Congress, September 
25th, 1789, were ratified by New Jersey November 20th of 
that year, then by others, till December 15th, 1791, when the 
ratification of Virginia took place, making eleven States, the 
whole number being fourteen. December 15th, 1791, is thus 
considered the date of these amendments. The Eleventh 
Amendment was declared, in a message from the President 
to Congress, dated January 8th, 1798, to have been adopted 
by the requisite number of States, and the amendment bears 
the date of the President's message. Of the adoption of the 
Twelfth Amendment public notice was given by the Secretary 
of State, September 25th, 1804. 

Act of 1818 .—In 1818 an act was passed making it the 
duty of the Secretary of State, on receiving official notice 
from the States of the adoption of an amendment by the 
requisite number, to cause the amendment to be published, 
with his certificate that it has been duly ratified. This act is 
still in force. 

The Withdrawal of a Ratification.—A question has arisen 
as to the power of a State to withdraw her ratification of an 
amendment to the Constitution. The legislature of New 
York ratified the Fifteenth Amendment, and subsequently 
voted to withdraw the ratification. The same is true of 
New Jersey and Ohio with regard to the Fourteenth Amend¬ 
ment. In the latter case the Secretary of State, after reciting 
the facts of the ratification by various States, including New 
Jersey and Ohio, and of the subsequent rejection by these two, 
proceeds : “ I do hereby certify that if the resolutions of the 
legislatures of Ohio and New Jersey, ratifying the aforesaid 
amendment, are to be deemed as remaining of full force and 
effect, notwithstanding the subsequent resolutions of the leg¬ 
islatures of those States, which purport to withdraw the con- 


256 


THE CONSTITUTION 


6. 1 


sent of said States from such ratification, then the aforesaid 
amendment has been ratified, etc.” 

Congress was not satisfied with this conditional notice of 
adoption, and the next day adopted a concurrent resolution, 
declaring the Fourteenth Amendment to be a part of the 
Constitution, and directing the Secretary of State to promul¬ 
gate it as such. The two houses of Congress have thus 
given their opinion that a State can not withdraw its consent 
when once given to a constitutional amendment. 

The ground of this decision may be thus stated. The Con¬ 
stitution declares that an amendment duly proposed shall be¬ 
come valid when ratified by three fourths of the legislatures 
of the several States. When a legislature has voted affirma¬ 
tively on the question of ratification, the work of the State is 
done so far as regards that amendment. The State is counted 
as in favor of it. Had the vote been a negative one, the 
State could not have been counted as in favor ; neither could 
it had there been no vote. “ Nothing but ratification fore¬ 
closes the right of action. When ratified, all power is ex¬ 
pended. Until ratified, the right to ratify remains.” 1 

In the case of the Fourteenth Amendment the Secretary's 
first proclamation was on the 20th of July, and the action of 
Congress on the 21st. Georgia, which had rejected it, ratified 
it on the 21st, making the requisite majority—twenty-eight 
in thirty-seven—without New Jersey and Ohio. The second 
proclamation of the Secretary was on the 28th. The amend¬ 
ment was thus ratified by the requisite number of States in¬ 
dependently of the action of Congress. 2 

Ratification by a Disloyal State.—Another question has 
been discussed. In a time of rebellion, is a ratification of a 
proposed amendment by the legislatures of three fourths of 
the loyal States sufficient to make the amendment valid ? 

1 Governor Bramlette to the legislature of Kentucky, quoted by Jameson, page 620. 

9 For the other view, that a State may withdraw its ratification, see Cooley in Story 
U., page 662. 


5. I. 


AMENDMENTS — RATIFICATION 


257 


According to the views given in commenting npon Sections 3 
and 4 of Article IV., this question must be answered affir¬ 
matively. If a State has forfeited her right to participate 
in the ordinary legislation of the nation, if she is deemed 
unfit, because of the disloyalty of her people, to assist in en¬ 
acting the ordinary laws, much less can she claim participa¬ 
tion in the higher and more sacred work of changing the 
great organic law of the Union. A proposed amendment to 
the Constitution is no more dependent upon the assent of a 
State holding such relation to the nation, than upon that of 
a Territory. 

But did not Congress direct the last three amendments to be sent for 
ratification to the disloyal as well as to the loyal States ? This was done, 
it is true; but this does not prove that their ratifications were essential to 
the validity of the amendments. The explanation of the seeming incon¬ 
sistency of Congress is to be found in the peculiar character of these 
amendments as affecting the seceding States. They all had reference to 
the abolition of slavery, and to the status of the freedmen. Congress 
made the ratification of these amendments by those States a condition of 
their restoration to the Union. It was for this reason that the amend¬ 
ments were sent to them, and not because such ratification was essential 
to their validity. They were all ratified by three fourths of the loyal 
States, and would have been valid without the assent of the others. The 
ratification by the disloyal States was simply the formal approval by their 
legislatures of the principles contained in the amendments, and was to 
that extent an evidence that they might be restored with safety to their 
former condition in the Union. 

The amendments that were adopted will be made the subject 
of comment in subsequent pages. The years when they were 
severally ratified are as follows: 

The First Ten Amendments, 1791. 

The Eleventh Amendment, 1798. 

The Twelfth Amendment, 1804. 

The Thirteenth Amendment, 1865. 

The Fourteenth Amendment, 1868. 

The Fifteenth Amendment, 1870. 

A. C.—17 


258 


THE CONSTITUTION 


6. I. 1 


The Sixteenth Amendment, 1913. 

The Seventeenth Amendment, 1913. 

Besides these amendments which now form part of the Con¬ 
stitution, Congress has proposed four that failed of ratification 
by the constitutional number of States (two proposed in 1789, 
one in 1810, and one in 1861). All four of these amendments 
are printed on pages 284-285. 

ARTICLE VI. 

Miscellaneous. 

Clause I .—All debts contracted and engagements entered 
into before the adoption of this Constitution, shall be as valid 
against the United States under this Constitution , as under 
the Confederation. 

A similar provision was made in the Articles of Confedera¬ 
tion. There was a new Constitution, but the nation was the 
same. The nation under its new Constitution would be sub¬ 
ject to all the obligations assumed before this Constitution 
had been adopted. v 

Clause 2 .—This Constitution, and the laws of the United 
States which shall be made in pursuance thereof; and all 
treaties made, or which shall be made, under the authority of 
the United States, shall be the supreme law of the land ; and 
the judges in every State shall be bound thereby, anything in 
the constitution or laws of any State to the contrary notwith¬ 
standing. 

Supremacy of the Constitution—The language of this 
clause is clear and explicit. The people of the United States 
established this Constitution for the United States. It was 
the work of the nation itself, and was binding in every part 
of the republic. This clause was intended to affirm the su¬ 
premacy of the national government over the State govern- 


6. I. 3. 


CONSTITUTION AND LAWS SUPREME 


259 


ments. If a law of a State, though in accordance with the 
constitution of that State, should be in conflict with the Con¬ 
stitution or a law of the United States, the former must yield. 
The judges in every State are expressly required to declare 
null and void any law of a State thus in conflict with a law of 
the United States or with its Constitution. 

The Constitution of the United States is the organic law, 
and all statutes, national and State, must be in conformity 
with its provisions. But there is this wide difference between 
the legislation of Congress and that of a State legislature. 
The former body is guided by the Constitution only. The 
latter must regard not only the national Constitution, but the 
laws enacted by Congress, as well as its own State constitu¬ 
tion. 

A law of the United States is binding until declared uncon¬ 
stitutional by the courts. As already stated, the Supreme 
Court has declared very few acts of Congress unconstitutional 
since the Constitution was adopted. 

An attempt was made by South Carolina, in 1832, to nullify 
certain laws of the Union, but it was promptly suppressed by 
President Jackson. 1 

Clause 3 .—The senators and representatives before men¬ 
tioned, and the members of the several State legislatures, and 
all executive and judicial officers, both of the United States 
and of the several States, shall be bound by oath or affirmation 
to support this Constitution ; but no religious test shall ever 
be required as a qualification to any office or public trust un¬ 
der the United States. 

Oath to Support the Constitution.—This oath to support 
the Constitution is required of all officers, both national and 

1 Mr. John C. Calhoun’s plan is here given as a curiosity. If Congress should pass a 
law which any State considered unconstitutional, the State, by a representative conven¬ 
tion, might reject it, and require that it be submitted to the several States. If three 
fourths of the States approved it, the State objecting should submit; otherwise the law 
should be null and void so far as concerned that State. 


260 


THE C0HSTITUTI03ST 


6. I. S. 


State, and belonging to any of the three departments, execu¬ 
tive, legislative, judicial. The Constitution itself (Article II., 
Section 1, Clause 7) prescribes the oath to be taken by the 
President of the United States. The first statute enacted 
under the Constitution was for the purpose of carrying into 
effect the present clause. On the 1st of June, 1789, a law 
was passed, prescribing the oath, as well as the time and man¬ 
ner of taking it, for the officers of the United States and of 
the several States. Objection was made to the bill on the 
ground that while an oath was obligatory upon all officers. 
State and national, there was no provision in the Constitution 
empowering Congress to pass a law enjoining the oath. To 
this it was replied that the general declarations of the Consti¬ 
tution could not be carried into effect without particular regu¬ 
lations adapted to the circumstances, and that these regula¬ 
tions must be made by Congress. 1 

The same objection has been made in numerous other instances, but the 
answer above given is sufficient. Were the objection to be regarded as 
valid, the wheels of government must stop. The Constitution is full of 
provisions requiring the performance of various duties, while no express 
power is given to Congress to pass laws prescribing the mode of perform¬ 
ance. But Congress has always regarded itself as possessing the requi¬ 
site power. In the first statute enacted under the Constitution, Congress 
decided that it had this power, and the law then enacted has remained in 
force to this day In regard to a similar clause, the Supreme Court held 
that “the end being required, it is a just and necessary implication that 
the means to accomplish it are given also; or, in other words, that the 
power flows as a necessary means to accomplish the end. . . . The 

national government, in the absence of all positive provisions to the con¬ 
trary, is bound, through its proper departments, legislative, judicial, or 
executive, to carry into effect all the rights and duties imposed on it by 
the Constitution.” 

The act of June 1st, 1789, prescribed the following oath : 
“ I, A. B., do solemnly swear, or affirm (as the case may be), 
that I will support the Constitution of the United States.” 

1 Annals of Congress, I., page 266. 


7. I. 


RATIFICATION OF THE CONSTITUTION 


261 


On the 2d of July, 1862, a very stringent oath of office was pre¬ 
scribed for all persons who should be elected or appointed to 
any office under the general government. The act required 
the person to take oath that he had never taken arms against 
the United States or aided its enemies ; that he had not sought 
or held office under, or yielded any support to, any pretended 
government hostile to the United States. It was applied to 
attorneys by an amendment made in 1865. 

This oath has been called the “ ironclad oath,” and it was this act 
which was pronounced unconstitutional by the Supreme Court, so far as it 
related to attorneys of that court. In 1868 (July 11th) the retrospective 
part of the ironclad oath was abolished for those persons having had par¬ 
ticipation in the rebellion, from whom all legal disabilities should have 
been removed by act of Congress, by a vote of two thirds of each house. 
In 1871 (February 15th) the act of 1868 was made applicable to all who par¬ 
ticipated in the rebellion who are not ineligible to office by the provisions 
of the Fourteenth Amendment. The law of 1862 was repealed in 1884. 

The last clause—touching a religious test—provides for 
universal toleration. No desire has ever been manifested to 
remove this prohibition and introduce a religious test. 

When the convention of South Carolina ratified the Con¬ 
stitution, it proposed this among other amendments—that 
the word “ other " should be inserted after the word “ no " ; 
implying that an oath or affirmation to support the Constitu¬ 
tion was itself a religious test. 1 

ARTICLE VII. 

Ratification of the Constitution. 

The ratification of the conventions of nine States shall he 
sufficient for the establishment of this Constitution between 
the States so ratifying the same. 

The Articles of Confederation Disregarded.—The Articles 
of Confederation provided that no alteration should be made 

»Jour. Cont. Cong., XIII., page 171. 


262 


THE CONSTITUTION 


7. I. 


in them “ unless such alteration be agreed to in a Congress 
of the United States, and be afterwards confirmed by the leg¬ 
islatures of every State.” This provision was entirely disre¬ 
garded in adopting the present Constitution, showing that 
those Articles were not regarded as anything more than a pro¬ 
visional constitution. They were in the “ form of a compact 
among the States,” in the language of Mr. Madison. 

The people, in whose name the Declaration of Independ¬ 
ence was made on the 4th of July, 1776, had nothing to do 
with the Articles of Confederation. These had “ no higher 
sanction than a mere legislative ratification.” 1 The Conven¬ 
tion had now framed a Constitution in the name of the people, 
by whom it was to be ratified. Thus the old Articles of Con¬ 
federation were practically ignored by the convention and by 
the people of the United States. 

Action of the Convention.—In the resolution of the Continental Con¬ 
gress, adopted February 21st, 1787, which provided for calling the Con¬ 
vention, it was stipulated that the Convention should report to Congress 
and to the several State legislatures for action by all these bodies. But 
the Convention, as seen in this article, did not ask the ratification of their 
work, either by Congress or by the State legislatures, but by conventions 
of the people. They not only ignored the old constitution, they also dis¬ 
regarded the directions of Congress as expressed in the resolution under 
which the Convention itself had been called. In the Convention Mr. 
Madison said it was essential that the direct action of the people should be 
had; and that the new Constitution should be ratified in the most unex¬ 
ceptionable form by the supreme authority of the people themselves. 

- The Constitution was to be binding when ratified by the 
conventions of nine States—two thirds of the whole number. 
This was the number required under the Confederation foi 
declaring war, making treaties, emitting bills of credit, etc. 

The Constitution Sent to Congress. —The Constitution was 
signed by the members of the Convention September 17th, 
1787, and forwarded to Congress, with a resolution requesting 
that it be transmitted to the several States for ratification by 

1 Federalist, No. 43. 


i. 


RATIFICATION OF THE CONSTITUTION 


263 


conventions. Another resolution was adopted by the Con¬ 
vention, making suggestions to Congress in regard to the 
mode of putting the Constitution into operation after it 
should be ratified. Accompanying these resolutions was a 
letter to the president of Congress by George Washington, 
president of the Convention. 

Action of Congress and the State Conventions. —On the 

28th of September Congress voted unanimously to transmit 
the Constitution to the several State legislatures, to be by 
them submitted to “ conventions of delegates chosen in eacli 
State by the people thereof." It was ratified by Delaware 
December 7th ; by Pennsylvania, December 12th ; by New 
Jersey, December 18th ; by Georgia, January 2d, 1788 ; by 
Connecticut, January 9th ; by Massachusetts, February 7th ; 
by Maryland, April 28th ; by South Carolina, May 23d ; and 
by New Hampshire, June 21st. This made the requisite 
number of States. 

Plan for the New Government. —On receiving the intelli¬ 
gence that the ninth State had ratified the Constitution, 
Congress appointed a committee to report a plan for putting 
the new government into operation. This committee reported 
July 14th. Oil the 13th of September final action was taken, 
providing for the election of the two houses of Congress, and 
of a President and a Vice President, and appointing the 4th 
day of March as the day on which to commence proceedings. 
Meanwhile the Constitution had been ratified by Virginia 
(June 25th, 1788) and New York (July 26th, 1788), making 
eleven States. North Carolina had deferred it, and Rhode 
Island refused to call a convention. Both, however, ratified 
it subsequently ; the former, November 21st, 1789, the latter 
May 29th, 1790. It will be remembered that Rhode Island 
sent no delegate to the Convention that framed the Constitu¬ 
tion. 

Suppose any State had Persisted in its Refusal.—The 

question naturally arises, what would have been the relation 


264 


THE CONSTITUTION 


T. I. 


of these two States to the United States had they finally 
refused to ratify the Constitution ? It has been held by some 
that their status would have been that of foreign nations. 
This view is believed to be untenable. While the Consti¬ 
tution was undergoing discussion in the conventions, the 
question as to the relations to the others of any States that 
should not ratify it, was justly considered a very delicate one. 
The object of the friends of the Constitution was to induce 
,every State voluntarily to adopt it; and to announce, before¬ 
hand, what would be the consequences of a refusal, might be 
construed into a threat, and so obstruct the attainment of the 
desired object . 1 Of this question Mr. Madison said, “ The 
flattering prospect of its being merely hypothetical forbids an 
overcurious discussion of it. It is one of those cases which 
must be left to provide for itself. . . . Considerations of 

a common interest and above all the remembrance of the 
endearing scenes which are past, and the anticipation of a 
speedy triumph over the obstacles to reunion, will, it is 
hoped, not urge in vain moderation on one side, and pru¬ 
dence on the other .” 2 

The View of Congress.— After the Constitution went into operation 
this question soon came before Congress. On the 5th of June, 1789, a 
resolution was introduced into the House of Representatives, urging the 
legislature of Rhode Island to call a convention. In July a law was 
passed imposing a tonnage duty of fifty cents a ton on foreign ships. In 
September this was suspended as to Rhode Island and North Carolina till 
January 15th, 1790. In February (North Carolina having meanwhile rati¬ 
fied the Constitution), at the request of Rhode Island, the suspension was 
extended to April 1st. Thus the ships of the people of Rhode Island 
were regarded as ships of citizens of the United States, by the request of 
Rhode Island herself. Meanwhile the legislature had passed an act pro¬ 
viding for a convention. On the 18th of May the Senate of the United 
States passed a bill prohibiting all commercial intercourse with Rhode 
Island, and demanding a sum of money for her proportion of the expenses 
of the war. But before this was acted on by the House of Representa- 


1 Farrar, page 490. 


3 Federalist, No. 43. 


AMENDMENTS 


265 


fives, Rhode Island had made the desired ratification. Among the reasons 
urged in the House for not passing the Senate bill was this : That Rhode 
Island was about to hold a convention; it would be pleasanter for all 
that she should come in freely; if the bill should pass and she were to 
come in she would be like “ a soldier pressed into the service, looked 
upon as unworthy to be ranged with the volunteers.” 

A careful study of the proceedings in Congress will show 
that steps looking toward coercion had already been taken, 
and that had Rhode Island much longer refused to ratify the 
Constitution, she would have been compelled to choose be¬ 
tween the condition of a State in the Union and that of a 
Territory or district under it. Rhode Island was a part of 
the domain of the United States, and she could not be allowed 
to alienate it. 

“ Both Rhode Island and North Carolina were component parts of the 
nation, and no practical statesman will admit for a moment that they could 
have been permitted, by a permanent refusal to take part in the new gov¬ 
ernment, to constitute themselves independent foreign nations in the heart 
of the Republic.” 1 


AMENDMENTS. 

To complete the study of the whole Constitution as it stands 
at present, we must now consider the amendments that have 
been added to it. 

Amendments by the First Congress.—At the time the 

Constitution itself was ratified by the States, several of them 
recommended amendments. In consequence of these recom¬ 
mendations, and to remove as far as possible all objections on 
the part of the people to the new Constitution, the subject 
was brought up in the First Congress, and the House of 
Representatives agreed, by the requisite vote of two thirds, 
to seventeen amendments. The Senate reduced the number 
to twelve. Ten of these were subsequently ratified by the 


1 Farrar, page 491. 


26*6 


THE CONSTITUTION 


Amend. 1. 


legislatures of three fourths of the States. The same Con¬ 
gress decided that the amendments should not be incorpo¬ 
rated into the text of the Constitution, but be appended to it, 
as a series of distinct provisions. They have been therefore 
numbered as so many distinct articles. They have the same 
force as the original Constitution. 

The First Ten Amendments are of the nature of a bill of 
rights. Nothing of this distinctive character is contained in 
the original Constitution. A motion was made in the Con 
vention for a committee to prepare such a bill, but it did not 
pass. Five States voted for it, and five against it; two were 
absent. 1 As the States in favor were Northern, and those 
against Southern, the inference has been drawn by some that 
a bill of rights was excluded in the interest of slavery. 2 
Others have contended that the Constitution itself was a bill 
of rights. The necessity of a distinct declaration of rights 
in the Constitution of a republican government is not so 
obvious as under a monarchy. Guaranties against hereditary 
monarchs may be needed, but the people hardly need such 
guaranties against themselves. 

Article I .—Congress shall make no law respecting an estab¬ 
lishment of religion, or prohibiting the free exercise thereof; 
or abridging the freedom of speech, or of the press ; or the right 
of the people peaceably to assemble and to petition the govern¬ 
ment for a redress of grievances. 

Prohibition on Congress. —This is a prohibition with ref¬ 
erence to Congress; it imposes no restraint on the action of 
the States. It has been held that most of the amendments 
proposed by the First Congress do not apply to the States, but 
to the national government alone. The several State consti¬ 
tutions contained provisions similar to those found in these 

1 Elliot, V., page 538. “The manuscript of Madison represents the motion as neg¬ 
atived unanimously. The change yet remains a mystery.”—Bancroft, II., page 210, note. 

8 Farrar, page 393. 


Amend 2. 


AMENDMENTS 


267 


amendments, restricting the operation of those governments. 
It was therefore for the purpose of restraining the various 
departments of the general government that these ten amend¬ 
ments were proposed. This is the view taken by the Supreme 
Court of the United States. 1 

Congress can not make any religion the established religion 
'of the nation, neither can it do aught to prevent its free 
exercise. 

Freedom of Speech and of the Press _By “ the freedom 

of speech or of the press ” is meant the right to speak and 
publish whatever is not in derogation of private rights, and 
which does not disturb the public peace or tend to subvert 
the government. There is danger, in a republican govern¬ 
ment, of carrying this freedom to excess, both in speech and 
in the press. We must be careful not to injure others in 
their rights of any kind, or weaken the authority of the gov¬ 
ernment. Especially in times of insurrection or rebellion is 
abundant caution needed. Too much regard can not be paid 
to time and place and circumstances. “ I believe in free 
speech/" said the Duke of Wellington, “ but not on board a 
man-of-war.” 

The right to assemble peaceably and petition for a redress 
of grievances is too obvious to have needed mention in the 
Constitution of a free people. 

Article 2 .—A well-regulated militia being necessary to the 
security of a free State , the right of the people to keep and 
bear arms shall not be infringed. 

The militia are the citizen soldiery of the country, as dis¬ 
tinguished from the standing, or regular army. The militia 
system has been allowed to fall into partial decay, showing that 
the people have little fear of need to defend themselves by 
force of arms against their government. 


1 7 Wallace, 321. 


268 


THE CONSTITUTION" 


Amend. 8. 


Article 3. — No soldier shall in time of peace be quartered 
in any house without the consent of the owner , nor in time of 
war, but in a manner to be prescribed by law . 

To quarter soldiers in a house is to station them there for 
lodging and subsistence. This was a mode by which despotic 
rulers might oppress their subjects. Article 3 recognizes the 
maxim of the common law, that a man’s house is his castle. 
By owner is meant as well the occupant for the time being. 

Article 4. — The right of the people to be secure in their 
persons, houses, papers, and effects, against unreasonable 
searches and seizures, shall not be violated, and no warrants 
shall issue, but upon probable cause, supported by oath or affir¬ 
mation, and particularly describing the place to be searched, 
and the persons or things to be seized. 

This, like the previous article, is for the protection of the 
citizens. As soldiers could not be quartered upon them, so 
unreasonable searches and seizures are prohibited, and every 
search or seizure must be made by special, and not by general, 
warrant. 

Article 5.— No person shall be held to answer for a capital 
or otherwise infamous crime, unless on a presentment or in¬ 
dictment of a grand jury, except in cases arising in the land 
or naval forces, or in the militia when in actual service in 
time of war or public danger ; nor shall any person be subject 
for the same offense to be twice put in jeopardy of life or limb ; 
nor shall be compelled in any criminal case to be a witness 
against himself; nor be deprived of life , liberty, or property, 
without due process of law ; nor shall private property be 
taken for public use without just compensation. 

Article 6. — In all criminal prosecutions, the accused shall 
enjoy the right to a speedy and public trial, by an impartial 
jury of the State and district wherein the crime shall have 


Amend. 7. 


AMENDMENTS 


269 


been committed, ivliich district shall have been previously as¬ 
certained by law, and to be informed of the nature and cause 
of the accusation ; to be confronted ivith the witnesses against 
him ; to have compulsory process for obtaining witnesses in 
his favor, and to have the assistance of counsel for his defense. 

Article 7 *— suits at common law, where the value in 
controversy shall exceed twenty dollars , the right of trial by 
jury shall be preserved, and no fact tried by a jury shall be 
otherwise reexamined in any court of the United States, than 
according to the rules of the common law. 

These three articles have already been considered in con¬ 
nection with Article III., Section 2, Clause 3. (Pages 220-* 
23.) 

Article 8. — Excessive bail shall not be required, nor ex¬ 
cessive fines imposed, nor cruel and unusual punishments in¬ 
flicted. 

Prohibitions on Congress.—It has been maintained, as 
already stated, that this article refers to the national govern¬ 
ment, and not to the State governments; and the same has 
been held concerning some of the articles that precede it. 
“ The first ten amendments were manifestly adopted from su¬ 
perabundant caution, as these rights were already sufficiently 
guarded by the State constitutions and bills of right." 1 

While some maintain that this amendment, as well as most 
of those which precede it, applies to the State governments as 
well as the national, 2 the courts have taken the other view. 
The language of the Fourteenth Amendment seems to imply 
the meaning given by the courts, as in it the States are pro¬ 
hibited from doing some things that the Fifth Amendment 
prohibits. If the Fifth applies to the State governments, 
what need of the same prohibitions in the Fourteenth? 

1 Duer, page 344. 3 Farrar, page 396. 


m 


THE CONSTITUTION 


Amend. 9. 


Article 9 .— The enumeration in the Constitution of certain 
rights shall not be construed to deny or disparage others re¬ 
tained by the people. 

The very language of this article shows the impossibility 
of making any complete enumeration of rights. The infer¬ 
ence might be drawn from some of the preceding articles, 
that what has not been therein prohibited, the government 
has the power to do. This article was inserted to prevent' 
such an inference, by the declaration that other rights not 
specifically mentioned are not therefore to be denied. But 
what others ? The matter is left in fact just where it was 
before any specific rights were enumerated. 

It was well said by Mr. Hamilton/ 4 That bills of rights are, 
in their origin, stipulations between kings and their subjects, 
abridgments of prerogative in favor of privilege, reservations 
of rights not surrendered to the prince. . . . They have 

no application to constitutions professedly founded upon the 
power of the people, and executed by their immediate repre¬ 
sentatives and servants. Here, in strictness, the people sur¬ 
render nothing ; and as they retaiu everything, they have no 
need of particular reservations. . . . The truth is, that 

the Constitution is itself, in every rational sense, and to every 
useful purpose, a bill of rights.” 1 

Article 10 .— The powers not delegated to the United States 
by the Constitution , nor prohibited by it to the States , are re• 
served to the States respectively , or to the people. 

The word “ Expressly ” not here —No part of the Con¬ 
stitution has been so often incorrectly quoted as this. The 
word 44 expressly” has been interpolated before the word 
44 delegated,” and many, perhaps, believe the Constitution to 
speak of powers expressly delegated to the United States. 


1 Federalist, No. 84. 


Amend. 10. 


AMENDMENTS 


271 


Bat the word is not in the Constitution, either in this article 
or in any other. It ivas in the Articles of Confederation, 
which was not a real constitution, but only an agreement be¬ 
tween the States. 

A motion was made, when this amendment was under con¬ 
sideration in Congress, to insert the word “ expressly/' but it 
was not carried. Mr. Madison objected to it, “ because it 
was impossible to confine a government to the exercise of ex¬ 
press powers; there must necessarily be admitted powers by 
implication unless the Constitution descended to recount 
every minutia” 1 A few days afterward the motion was re¬ 
newed, and again it was lost. 2 

This Amendment Misunderstood. — This Tenth Amend¬ 
ment has not only been misquoted ; its meaning has been 
strangely perverted. Says Dr. Cooper, “ Congress, under the 
Constitution of 1787 and its amendments, can exercise no 
rights or powers but such as are expressly enumerated and 
delegated, or that necessarily and unavoidably flow from those 
that are. Every other right and power is reserved by and 
remains vested in the States, to be delegated or not." 3 The 
people seem to be wholly ignored by this writer. He has no 
idea that the general government has any power save as it has 
been delegated by the States. But the States, as governments, 
have delegated nothing. All the power has come from the 
people. They have delegated to the United States govern¬ 
ment, and they have delegated to the State governments. 
The term “United States," in this amendment, means the 
United States government, and not the people. So “ States" 
means the State governments. 

Power Delegated by the People to both Governments— 
The meaning of the amendment is plain. The people of the 
United States are the source of power. They have estab¬ 
lished a kind of double government—that of the United 

* Annals of Congress, I., page 790. a Ibid, page 79T. 

» Statutes of South Carolina, I., page 217. 


272 


THE CONSTITUTION 


Amend. 10. 


States and that of the several States. The people of the 
United States have authorized the general government, known 
as the United States, to exercise large powers, and in the 
same Constitution have made various prohibitions upon the 
State governments. Whatever there may he of the nature of 
governmental power, which has not been thus authorized to 
the general government, nor prohibited to the States, the, 
people of a State may delegate to that State, or they may re¬ 
tain it undelegated. The States, as governmental corpora¬ 
tions, have delegated nothing. The people of a State may 
insert in their own constitution any power not already in¬ 
serted by the whole people in the Constitution of the United 
States, and not forbidden by the whole people to be inserted 
in a State constitution. 

The Distinction between the People and the Government 

must never be lost sight of. The people make constitutions ; 
governments carry on the legislative, executive, and judicial 
departments of civil society in conformity with the consti¬ 
tution thus made by the people. This is true of the whole 
people and of the people of the several States. The people of 
the United States are under no restrictions as to the powers 
with which they may clothe their government, except those 
that are imposed by the great rules of justice and right. But 
the people of a State are restricted. They may not confer on 
their State government any powers which the whole people 
have conferred on the United States government, nor any 
which the whole people have said shall not be exercised by 
the State governments. “ What is not conferred by the 
Constitution is withheld, and retained by the State govern¬ 
ments, if vested in them by their constitutions ; and if not so 
vested, it remains with the people as a part of their residuary 
sovereignty. . . . It is a general principle that all bodies 

politic possess all the powers incident to a corporate capacity, 
without any express declaration to that effect ; and one of 
those defects of the Confederation which led to its abolition, 


Amend. 11. 


AMENDMENTS 


273 


was its prohibiting Congress from the exercise of any power 
‘not expressly delegated/ ” 1 

These ten Amendments were proposed by Congress Sep¬ 
tember 25th, 1789, and ratified December 15th, 1791. 

Article n .—The judicial poiver of the United States shall 
not be construed to extend to any suit in law or equity com - 
menced or prosecuted against one of the United States by citi¬ 
zens of another State , or by citizens or subjects of any foreign 
state. 

This amendment, which has been considered already in 
connection with the judiciary (pages 210, 211), was proposed 
March 5th, 1794, and ratified January 8th, 1798. 

Article 12. —This amendment, relating to the election of 
President and Vice President, is given in full (page 171) in 
the treatment of the executive department. It was proposed 
December 12th, 1803, and was officially declared to be ratified 
September 25th, 1804. 

Article 13, Sec. 1 .—Neither slavery nor involuntary 
servitude , except as a punishment for crime whereof the party 
shall have been duly convicted , shall exist within the United 
States , or any place subject to their jurisdiction. 

Section 2. — Congress shall have power to enforce this 
article by appropriate legislation. 

First Use of the Word Slavery. —Until this amendment 
was made, the word slavery was not to be found in the Con¬ 
stitution. If the idea was there, it was expressed by a eu¬ 
phemism. Even the amendment proposed by Congress, 
March 2d, 1861, to which reference has already been made, 
spoke of “ persons held to service or labor.” But now that the 
institution was to be abolished, it was called by its own name. 

1 Duer, page 843. 

A. C.—18 


274 


THE CONSTITUTION 


Amend. 13. 


Slavery had already been abolished by act of Congress in 
the District of Columbia, April 16th, 1862, and in the Terri¬ 
tories June 19th of the same year. The President had also, 
by proclamation, January 1st, 1863, declared all slaves in 
certain States and parts of States free. 

Ratification of the Thirteenth Amendment. —The resolu¬ 
tion for the abolition of slavery was passed by two thirds of the 
Senate, April 8th, 1864; but the requisite majority was not 
secured in the House till the following winter. It was adopt¬ 
ed January 31st, 1865, and transmitted to the States. The 
ratification by the requisite number of States was announced 
December 18th of the same year. 

Mr. Secretary Seward, in his certificate that the amend¬ 
ment had become valid as part of the Constitution of the 
United States, named twenty-seven States—three fourths of 
thirty-six—as having ratified it. Of these, eight had been in 
the Confederacy ; and though they had formed new free-State 
constitutions under the proclamations of Presidents Lincoln 
and Johnson, none of them had been formally restored to the 
Union by act of Congress. There were then nineteen loyal 
States that had ratified this amendment, and four others did 
so subsequently to the date of the certificate. According to 
the view taken in this work, that a proposed amendment be¬ 
comes valid when ratified by three fourths of the loyal States, 
the Thirteenth Amendment was truly a part of the Constitu¬ 
tion at the date of the Secretary's certificate, nineteen of the 
twenty-five loyal States having ratified it. 

Those who think the ratifications of three fourths of the whole number 
of States requisite, maintain the legality of the ratification in this way : 
The eight insurrectionary States that ratified this amendment had been 
reconstructed in accordance with executive proclamations, though without 
any official recognition by Congress. But as this body had not disap¬ 
proved of this reconstruction, and as this amendment had been sent to 
these States for ratification, Congress did give a kind of passive approva. 
of the executive policy of reconstruction, and so virtually recognized 


Amend. 14. 


AMENDMENTS 


275 


them as States. When subsequently (March 2d, 1867) Congress declared 
these eight with two others to be in a state of insurrection, the act had no 
retrospective effect. 1 

If the consistency of Congress is called in question in thus seeming to 
recognize these eight States by asking for, and receiving, their ratifications 
of the proposed amendment, and subsequently refusing admission to their 
senators and representatives, the explanation must be left to Congress. 
But whether these eight were veritable States under the Constitution or 
not, there can be no doubt that the Thirteenth Amendment has been duly 
ratified by three fourths of the loyal States, if those only should be counted, 
or by three fourths of the whole. 

The second clause of the amendment seems wholly super¬ 
fluous, as Congress has the same power to enforce this as any 
other provision of the Constitution. 

Article 14, Sec. 1 .—All persons born or naturalized in 
the United States , and subject to the jurisdiction thereof , are 
citizens of the United States and of the State wherein they 
reside. No State shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of the United 
States ; nor shall any State deprive any person of life , liberty , 
or property , without due process of law ; nor deny to any 
person within its jurisdiction the equal protection of the laws. 

The Fourteenth Amendment was proposed by Congress, 
June 16th, 1866, and was declared to be a part of the Consti¬ 
tution, July 21st, 1868, by a concurrent resolution of the two 
houses of Congress. The Secretary’s proclamation is dated 
July 28th. 

Origin of Section 1.—The Thirteenth Amendment abolishes slavery 
throughout the United States. According to the opinion given by Mr. 
Justice Swayne, as already quoted, the emancipation of a slave removes 
the obstacle to his citizenship. Aliens become citizens by naturalization ; 
slaves, by emancipation. 

The act passed by Congress in April, 1866, known as the Civil Rights 
Bill, gave expression to this opinion. It declared all persons born in the 

i Skinner’s Issues of American Politics, page 204. 


276 


THE CONSTITUTION 


Amend. 14 


United States, and not subject to any foreign power, excluding Indians 
not taxed, to be citizens of the United States. It conferred upon the freed- 
men all the rights and made them liable to all the obligations of citizens. 
But it was doubted by some whether a mere act of legislation could confer 
citizenship, and whether it did not require the authority of the Constitu¬ 
tion itself. To make sure the citizenship of the emancipated population, 
the principle of the Civil Rights Bill was embodied in this Fourteenth 
Amendment. 

Different from Former Amendments.— While the first sec¬ 
tion had its origin in the purpose of the people to protect the 
colored population, the language is not restricted to them, 
but is applicable as well to all the citizens of the country. 
And, as it has been maintained that the first eight amend¬ 
ments had no reference to the State governments, but were 
restraints upon the general government only, this Fourteenth 
Amendment declares explicitly that “ No State shall make or 
enforce any law which shall abridge the privileges or immuni¬ 
ties of citizens of the United States ; nor shall any State de¬ 
prive any person of life, liberty, or property, without due proc¬ 
ess of law; nor deny to any person within its jurisdiction the 
equal protection of the laws.” 

The greatest part of constitutional litigation in the United 
States Supreme Court has arisen under the Fourteenth 
Amendment. The clause forbidding the States to deprive 
“any person of life, liberty, or property without due process 
of law,” gave the federal courts jurisdiction over a vast amount 
of litigation. The amendment has been construed by a long 
line of decisions upon its application to special occasions. 

“ Liberty ” is not only freedom from personal, physical restraint, but 
the right to pursue any lawful occupation, to enter into contracts accord¬ 
ing to one’s own judgment, and otherwise to be a free citizen. “ Prop¬ 
erty ” includes not only things physically possessed and evidences of debt 
like notes and bonds, but also contract rights, and the right to labor and 
pursue an occupation. 

“ Due process of law ” can not be positively defined. What is due proc¬ 
ess of law in one instance is not m another. In same cases as between 


Amend. 14 


AMENDMENTS 


277 


two individuals, it means a proceeding in the courts with or without a jury 
according to the rules of the common law. As between the public and an 
individual it means in some cases a judicial proceeding and in others a 
mere u hearing” before decision. In the case of assessments for the cost 
of building public roads a chance to be heard in a reasonable manner and 
time is all that is required. 

A citizen is liable to be deprived of his property without due process of 
law, either by being unequally and unjustly taxed so that the exaction 
amounts to a taking of property instead of fair taxation, or by being un¬ 
justly restrained in his use of his property by unfair laws purporting to 
be made in the interest of public health, safety, and welfare. 

The police power of the States, under which they regulate ordinary af¬ 
fairs without technically depriving anybody of liberty or property, is very 
great. A State can require a man owning a brewery to cease using it, 
though the property be useless for any other purposes. Laundries in 
cities can be required to be conducted in certain kinds of houses to pre¬ 
vent fires. Miners may be prevented from working longer than a certain 
number of hours, in the interest of public health. Bakers, hack-owners, 
street and other railways, grain elevators, may be limited in the charges 
they can make for their services, without being deprived of liberty or of 
property. This is because their business is a public one. It is “ affected 
with a public use ” and the public have a peculiar interest in it. The reg¬ 
ulation, however, must be reasonably adapted to the object it purports to 
accomplish, and must not be unfair. 

Legislation to Enforce this Section.—In April, 1871 , an 

act was passed to enforce the provisions of the Fourteenth 
Amendment. It was rendered necessary, in the judgment of 
Congress, in consequence of the treatment received by the 
colored people of certain States of the South, and the failure 
of those States to afford them the protection required by the 
Constitution. The act is known as the Ku Klux Bill. It 
provides that the failure of a State to protect any portion of its 
people against unlawful combinations shall be deemed a denial 
of the protection guaranteed in this amendment. Under this 
act the President suspended the writ of habeas corpus in cer¬ 
tain counties, and suppressed the combinations. 1 In March, 
1875 , an act was passed entitling all persons to the full and 

• For a severe criticism of the law see Skinner, page 816. 


278 


THE CONSTITUTION 


Amend. 14. 


equal enjoyment of inns, public conveyances, places of amuse¬ 
ment, etc., regardless of race, color, or previous condition of 
servitude; but the Supreme Court lias decided that this leg¬ 
islation was unconstitutional so far as the States are con¬ 
cerned. 

Section 2 .—Representatives shall be apportioned among 
the several States according to their respective numbers, count¬ 
ing the whole number of persons in each State, excluding Ind¬ 
ians not taxed. But ivhen the right to vote at any election for 
the choice of electors for President and Vice President of the 
United States, representatives in Congress, the executive and 
judicial officers of a State, or the members of the legislature 
thereof, is denied to any of the male inhabitants of such State, 
being twenty-one years of age and citizens of the United States, 
or in any way abridged, except for participation in rebellion, 
or other crime , the basis of representation therein shall be re¬ 
duced in the proportion which the number of such male citi¬ 
zens shall bear to the whole number of male citizens twenty-one 
years of age in such State. 

So long as there were slaves, three fifths of them were 
counted in order to ascertain the population of a State, and 
thus the number of representatives to which the State was 
entitled. But slavery having been abolished, representatives 
must be apportioned among the States according to their re¬ 
spective numbers. 

Inequality in Representation. -j/The number of represent¬ 
atives being in proportion to the whole population of the 
States, including those that are colored, if suffrage were de¬ 
nied to this class the former slave States would have delega¬ 
tions in Congress much larger, in proportion to the number 
of voters, than the original free States. To remedy this in¬ 
equality was the object of this second section. By it the 
States were not required to allow the blacks the right of suf¬ 
frage ; but if they did not allow it, their representation in 


Amend. 14. 


AMENDMENTS 


279 


Congress was to be proportionately diminished. They might 
take their choice between general suffrage and more congress¬ 
men, or white suffrage and fewer congressmen. 

The Normal Case of Suffrage.—This section implies the 
normal case of suffrage to be this : that all male citizens of 
twenty-one years of age may vote. For it provides that if any 
such are not allowed by their State to vote, the number of 
representatives in such State shall be diminished. This seems 
to throw the moral influence of the Constitution in favor of 
universal suffrage. There is nothing, however, to prevent 
any State from prescribing a qualification of intelligence or 
one of property. But as this amendment might reduce the 
number of representatives for a State, should any large num¬ 
ber of former voters be found not to possess the required 
qualification, the probability of suffrage limitation is ren¬ 
dered less than before. 

Restrictions of the Suffrage.—Since 1890 educational or property qual¬ 
ifications have been inserted in the constitutions of most of the Southern 
States. The effect of these provisions has been to disfranchise a large 
proportion of the negroes. Educational qualifications are imposed in 
some Northern States, but they do not result in the exclusion of very 
many persons from the suffrage. No action, however, has been taken 
by Congress to apply the Fourteenth Amendment to any of these cases^ 
Some writers claim that this part of the amendment was practically 
superseded by the adoption of the Fifteenth Amendment. 

Woman Suffrage.—It has been claimed that the Fourteenth 
Amendment establishes the principle of woman suffrage. 
Does it ? The first section declares who are citizens. All 
persons born or naturalized in the United States, and subject 
to the jurisdiction thereof, are citizens. They are citizens as 
soon as born. Children, as well as men and women, are citi¬ 
zens. Citizenship and suffrage, then, are not the same. This 
section confers civil rights, but not political. A State is pro¬ 
hibited from interfering with civil rights, but nothing is said 
of suffrage. 


280 


THE CONSTITUTION 


Amend. 14. 


The second section provides that if in any State any male 
citizens of twenty-one years of age are denied the rights of 
voting, the State shall suffer by a proportionate reduction of 
the number of representatives in Congress. If citizenship 
implied the right to vote, no State could deprive a constitu¬ 
tional citizen of that right. The very supposition, in the 
second section, that a State may deny the right to vote to 
some whom the Constitution declares to be citizens, is proof 
that one may be a citizen and yet be unable to vote ; and, 
therefore, the conferring of citizenship is not the conferring 
of the right of suffrage. 

Again, those citizens whom a State may not with impunity 
deprive of the right of suffrage have two requisites : they are 
males , and of the age of twenty-one years. A State may pre¬ 
vent others from voting as much as she pleases ; the Constitu¬ 
tion contains no inhibition, and affixes no penalty for such 
prevention. If the first section gives women the right to 
vote, the second permits a State to take the right away. 
Virtually the Constitution in this amendment indicates the 
essential requisites for the exercise of suffrage. Voters must 
be male citizens of the age of twenty-one. These two quali¬ 
fications are placed in the same category, and hold precisely 
the same relation to suffrage. If the right to vote belongs by 
this second section to one not a male, by the same reasoning 
it belongs to one not twenty-one years old. The real mean¬ 
ing is, that as males under twenty-one are not expected to 
vote, so women are not expected to vote. 

There is nothing whatever in this amendment, however, to 
prevent a State from conferring the suffrage on women if it 
chooses to do so ; and in several of the States women now 
vote on an equality with men. 

Section 3 .—No person shall be a senator or representative 
in Congress, or elector of President and Vice President , or 
hold any office, civil or military , under the United States, or 


Amend. 14. 


AMENDMENTS 


281 


under any State, tvho , having previously taken an oath, as a 
member of Congress, or as an officer of the United States, or 
as a member of any State legislature, or as an executive or 
judicial officer of any State, to support the Constitution of the 
United States, shall have engaged in insurrection or rebellion 
against the same, or given aid or comfort to the enemies there¬ 
of. But Congress may, by a vote of two thirds of each House, 
remove such disability. 

This section needs little comment. Those who as officers 
had sworn to support the Constitution, and then engaged in 
insurrection, are precluded from again holding office, except 
Congress shall remove the disability. 

The Pardoning Power of the President.—Article II., Section 2, of the 
Constitution gives the President power to grant reprieves and pardons for 
offenses against the United States, except in cases of impeachment. It is 
doubted whether cases of amnesty were intended to be included. Early 
in the civil war, July 17th, 1862, Congress authorized the President to 
issue proclamations of amnesty. This was done by President Lincoln 
and by President Johnson. In January, 1867, the authority was with¬ 
drawn by Congress, but President Johnson nevertheless issued other 
proclamations even after the ratification of this amendment. Whether 
he had the authority to issue such proclamations after the repeal of the 
provision referred to, is doubtful; but certainly he had no power to do 
so after the adoption of this amendment. 

Removal of Disabilities.—The disabilities imposed by this 
section were removed by private acts of Congress in many cases. 
In 1872 Congress removed these disabilities from all except sena¬ 
tors and representatives of the Thirty-sixth and Thirty-seventh 
Congresses, officers in the judicial, military, and naval service 
of the United States, heads of departments, and foreign min¬ 
isters of the United States. Some of the persons excepted 
were relieved from the disabilities by private acts ; and in 1898 
Congress removed all existing disabilities. 

Section 4.— The validity of the public delt of the United 
States , authorized by law , including debts incurred for pay- 


282 


THE CONSTITUTION 


Amend. 15. 


merit of pensions and bounties for services in suppressing in¬ 
surrection or rebellion, shall not be questioned. But neither 
the United /States nor any State shall assume or pay any debt 
or obligation incurred in aid of insurrection or rebellion 
against the United States , or any claim for the loss or eman¬ 
cipation of any slave; but all such debts , obligations , and 
claims shall be held illegal and void. 

This section had reference to the existing public debt, which 
was incurred in prosecuting the civil war; but the language is 
general, and therefore applicable to all public debts. The 
prohibition as to the payment of any part of a debt incurred 
in aid of insurrection or rebellion against the United States, 
is also general. The measure was one of obvious security, as 
under the reconstruction laws many of those formerly in the 
Confederacy were admitted to the State and national legisla¬ 
tures. It was better for all to have the question settled by 
the adoption of a clause in the organic law itself. 

Section 5.— The Congress shall have power to enforce , by 
appropriate legislation , the provisions of this article. 

This section seems unnecessary. Whatever the Constitution 
requires, Congress has power to carry out by appropriate legis¬ 
lation, whether there be specific provision for it or not. 

Article 15, Sec. I.— The right of citizens of the United 
States to vote shall not be denied or abridged by the United 
States or by any State on account of race , color , or previous 
condition of servitude. 

Section 2 .—The Congress shall have power to enforce this 
article by appropriate legislation. 

This Fifteenth Amendment was proposed by Congress, Feb¬ 
ruary 27, 1869, and was declared ratified March 30, 1870. 

Object of this Amendment.— The second section of the 
Fourteenth Amendment (page 278) was intended to secure 
suffrage to the freedmen, but it was not attended with 


Amend. 16. 


AMENDMENTS 


283 


the success which was anticipated. The enfranchisement 
of the colored race was deemed indispensable to their own 
safety and to the prosperity of the nation j and the first plan 
to secure it having failed, a second was proposed. Hence 
this Fifteenth Amendment. It declares that the right of citi¬ 
zens to vote shall not be denied or abridged on account of race, 
color, or previous condition of servitude. The Fourteenth 
Amendment declared the colored race to be citizens, and thus 
gave them all civil rights; and the Fifteenth secures them 
suffrage, and thus gives them political rights. 

To Whom Applicable. —This article does not, of course, 
imply that all citizens may vote. We have seen that the 
Fourteenth Amendment declares children, as well as adults, 
to be citizens, showing that to make the right of suffrage co¬ 
extensive with citizenship would be absurd. The meaning is 
that the right of male citizens twenty-one years old to vote 
shall not be denied on account of race, color, or previous con¬ 
dition of servitude. The right to vote may not be denied for 
any of these three causes, but it may for any other cause. 
The freedmen are put upon an equality with others as to the 
right of suffrage. If an educational or other qualification 
is required, it must apply to whites as well as to negroes. 

Article 16 .—The Congress shall have power to lay and 
collect taxes on incomes, from whatever source derived, with¬ 
out apportionment among the several States, and without 
regard to any census or enumeration. 

The Sixteenth Amendment was proposed by Congress July 
12, 1909, and was declared to be ratified February 25, 1913. 

Income Taxes. —During the civil war Congress levied a tax 
on incomes for the first time. This tax remained in force for 
ten years, but was finally repealed in 1872. In 1894, in re¬ 
sponse to a demand from many quarters, the income tax was 
revived. The new law was soon after tested in the Supreme 
Court, and that tribunal, reversing its decisions in the past, 


284 


THE CONSTITUTION 


declared the tax unconstitutional. However, the sentiment 
for an income tax grew steadily until its advocates brought 
about the amendment to the Constitution, thereby removing 
all obstacles. Accordingly in 1913, Congress passed a gradu¬ 
ated income tax which is now in force. 

Article 17, Sec. i.— The Senate of the United States 
shall be composed of two Senators from each State , elected by 
the people thereof , for six years; and each Senator shall 
have one vote. The electors in each State shall have the 
qualifications requisite for electors of the most numerous 
branch of the State legislatures. 

Section 2.— When vacancies happen in the representation 
of any State in the Senate , the executive authority of such 
State shall issue writs of election to fill such vacancies: 
Provided, That the legislature of any State may empower 
the executive thereof to make temporary appointments until 
the people fill the vacancies by election as the legislature may 
direct. 

Section 3. —This amendment shall not be so construed as 
to affect the election or term of any Senator chosen before it 
becomes valid as part of the Constitution. 

The Seventeenth Amendment was proposed May 16, 1912, 
and was declared ratified May 31, 1913. 

The original plan of electing senators was for many years 
previous to 1912 the object of much hostile criticism. Often, 
when it was necessary to elect a new senator, there would be a 
deadlock in a State legislature for many months. During this 
time no candidate could receive enough votes for election, and 
as a result the State would not be represented in the Senate, 
or if it was necessary to elect both senators, would not be 
represented at all. Often the change of a few votes might de¬ 
cide the election, and bribery might be resorted to. Many 
people advocated an amendment to the Constitution, pro¬ 
viding that senators should be elected by the people instead of 


AMENDMENTS NOT RATIFIED 


285 


by the legislatures. Several times the House of Representa¬ 
tives proposed an amendment for this purpose, but each time 
the Senate voted adversely. Finally, in 1912, a majority of 
the Senators voted in favor of the amendment and within a 
few months it was ratified by a sufficient number of States. 

AMENDMENTS PROPOSED BUT NOT RATIFIED. 

Four amendments proposed by Congress were not ratified by 
the legislatures of three fourths of the States. 

Two of these were proposed by the First Congress. Twelve were pro¬ 
posed, of which the last ten were ratified. The other two follow : 

1. Basis of Representation.—“ After the first enumeration required by 
the first article of the Constitution, there shall be one representative for 
every thirty thousand, until the number shall amount to one hundred, 
after which the proportion shall be so regulated by Congress that there 
shall be not less than one hundred representatives, nor less than one rep¬ 
resentative for every forty thousand persons, until the number of repre¬ 
sentatives shall amount to two hundred ; after which the proportion shall 
be so regulated by Congress that there shall not be less than two hundred 
representatives nor more than one representative for every fifty thousand 
persons.” 

2. Pay of Congressmen.—“No law varying the compensation for the 
services of the senators and representatives shall take efiect until an 
election of representatives shall have intervened.” 

The following amendment was proposed by the Eleventh Congress at 
its second session: 

3. Presents, etc., to Citizens.—“If any citizen of the United States 
shall accept, claim, receive, or retain any title of nobility or honor, or 
shall, without the consent of Congress, accept and retain any present, 
pension, office, or emolument of any kind whatever, fiom any emperor, 
king, prince, or foreign power, such person shall cease to be a citizen of 
the United States, and shall be incapable of holding any office of trust or 
profit under them or either of them.” 

The fourth of the amendments proposed but not ratified was proposed 
at the close of the Thirty-sixth Congress, March 2 d, 1861 . 

4. Congress and Slavery.—“ No amendment shall be made to the Con¬ 
stitution which will authorize or give to Congress the power to abolish or 
interfere, within auy State, with the domestic institutions thereof, in¬ 
cluding that of persons held to labor or service by the laws of said State.” 


CHAPTER V. 


The Ratification of the Constitution by Conventions in the 
Several States. 

The Convention and the Congress.—As we have seen in an 
earlier chapter (page 43), the Constitution was adopted and 
signed by the members of the Convention in September, 1787. 

The following resolutions, adopted by the Convention, 
were transmitted to Congress, with a copy of the Constitu¬ 
tion, accompanied by a letter from the President. 

“ In Convention, Monday, September 17th, 1787. 

“ Resolved , That the preceding Constitution be laid before 
the United States in Congress assembled, and that it is the 
opinion of this Convention that it should afterwards be sub¬ 
mitted to a convention of delegates, chosen in each State by 
the people thereof, under the recommendation of its legisla¬ 
ture, for their assent and ratification ; and that each conven¬ 
tion, assenting to and ratifying the same, should give notice 
thereof to the United States in Congress assembled. 

“ Resolved , That it is the opinion of this Convention that 
as soon as the conventions of nine States shall have ratified 
this Constitution, the United States in Congress assembled 
should fix a day on which electors should be appointed by the 
States which shall have ratified the same, and a day on which 
the electors should assemble to vote for the President, and 
the time and place for commencing proceedings under this 
Constitution. That after such publication the electors should 
be appointed and the senators and representatives elected; 
that the electors should meet on the day fixed for the election 

386 


THE MODE OF RATIFICATION 


287 


of the President, and should transmit their votes, certified, 
signed, sealed, and directed, as the Constitution requires, to 
the Secretary of the United States in Congress assembled; 
that the senators and representatives should convene at the 
time and place assigned ; that the senators should appoint a 
president of the Senate for the sole purpose of receiving, 
opening, and counting the votes for President; and that, 
after he shall be chosen, the Congress, together with the 
President, should without delay proceed to execute this 
Constitution. 

“ By the unanimous order of the Convention, 

“ George Washington, President. 

“ William Jackson, Secretary 

Plan of the Convention. —The resolution of Congress, 
adopted February 21st, 1787, recommending that a Conven¬ 
tion should be held for the purpose of revising the Articles 
of Confederation, contemplated that those alterations, after 
being agreed to by Congress, should be confirmed by the 
States. But the Convention, in the resolutions transmitted 
to Congress with a copy of the Constitution, proposed that 
this confirmation should not be by the States, i.e., by the 
legislatures of the States, but that the instrument should “ be 
submitted to a convention of delegates chosen in each State 
by the people thereof.” 

The Articles of Confederation had been adopted by Congress and rati¬ 
fied by the legislatures of the several States. They had never been sub¬ 
mitted to the people. Congress expected that the alterations would be 
submitted to the legislatures and not to the people. The Convention 
thought, however, that if the adoption of the new Constitution were to be 
referred to the State legislatures it would not rest on the direct authority 
of the people. 

The New System would Abolish the Old. —The Articles of 
Confederation could not be amended without the assent of all 
the States ; but the Constitution was to go into effect when 


288 


THE CONSTITUTION 


nine of the thirteen should have ratified it. The Convention, 
therefore, “had prepared a system of government that would 
not merely alter, but would abolish and supersede the Con¬ 
federation ; and they had determined to obtain, what they 
regarded as a legitimate authority for this purpose, the con¬ 
sent of the people of the States, by whose will the State gov¬ 
ernments existed.” 1 The Articles of Confederation were the 
work of Congress and the State governments. The people 
had no participation in them. They were not in the name of 
the people. But the Constitution framed by the Convention 
of 1787 was in the name of the people ; and, should it go into 
operation, would derive its validity from the people them¬ 
selves. Prior to the adoption of the present Constitution, the 
United States could hardly be said to have a constitution. 
They had a government, and the relation of the States to the 
nation was virtually the same as now; but their respective 
duties had not been definitely stated, and there was no little 
friction in the working of the governmental machinery. The 
members of the Convention had great hopes that the new 
Constitution would be found to remedy these evils, and in 
this they were not disappointed. 

Action of Congress. —Congress having received the report 
of the Convention, adopted (September 28th) the following 
resolution : “ Resolved, unanimously, that the said report, 
with the resolutions and letter accompanying the same, be 
transmitted to the several legislatures, in order to be submit¬ 
ted to a convention of delegates chosen in each State by the 
people thereof, in conformity to the resolves of the Conven¬ 
tion made and provided in that case.” 

Congress, it will be seen, merely transmits the Constitution to the State 
legislatures, without either approval or disapproval. This was what the 
Convention had reouested, though a vote of approval would have facili¬ 
tated its adoption in the conventions of the States. But some opposition 


1 Curtis, II., page 481. 


RUMORS AS TO THE CONSTITUTION 


289 


was made in Congress to the Constitution, and to obtain unanimity it was 
necessary, says Mr. Madison, to couch the resolution in very moderate 
terms. It was first contended that Congress could not properly give any 
positive countenance to a measure which had for its object the subversion 
of the constitution under which they acted. This objection having been 
answered, an effort was made to amend the Constitution by inserting a 
bill of rights, trial by jury in civil cases, etc. Had this effort been suc¬ 
cessful, it would, without doubt, have defeated the Constitution, as two 
instruments would have been placed before the people for their ratifi¬ 
cation. 

Rumors as to the Constitution.—The Convention had kept 
their proceedings secret, and there was consequently great 
anxiety to know the character of the new Constitution. 
Singular rumors were circulated, among which was one that a 
system of monarchical government had been framed, and the 
monarch designated in the person of one of the sons of George 
III. But, two days after the Convention adjourned, the new 
Constitution was published in the newspapers of Philadelphia, 
thus dispelling all doubt in regard to it. 

Its Friends and its Opponents.—“ It met everywhere with warm friends 
and warm opponents.” Mr. Curtis classifies its advocates thus: first, a 
large body who regarded it as the admirable system which it proved to be 
when put into operation ; second, those who believed it to be the best at¬ 
tainable government that could be adopted by the people of the United 
States, overlooking defects which they acknowledged, or trusting to the 
power of amendment which it contained ; and, third, the mercantile and 
manufacturing classes who regarded its commercial and revenue powers 
with great favor. “ Its adversaries,” he says, u were those who had always 
opposed any enlargement of the federal system ; those whose consequence 
as politicians would be diminished by the establishment of a government 
able to attract into its service the highest classes of talent and character, 
and presenting a service distinct from that of the States ; those who con¬ 
scientiously believed its provisions and powers dangerous to the rights of 
the States and to public liberty ; and, finally, those who were opposed to 
any government, whether State or national or federal, that would have 
vigor and energy enough to protect the rights of property, to prevent 
schemes of plunder in the form of paper money, and to bring about the 
discharge of public and private debts.” 

A. 0.—19 


290 


THE CONSTITUTION 


Ratifications by the States.—The legislatures of all the 
States, except Rhode island, called conventions of the people 
to act upon the Constitution, though in some of them there 
was strong opposition. Thus in New York the resolutions 
for a convention were passed by majorities of only three in the 
Senate and two in the House ; and this on the 1st of Febru¬ 
ary, 1788, when five States had already ratified the Constitu¬ 
tion. 

The first ratification was by Delaware, on the 7th of De¬ 
cember, 1787. It was done unanimously, and without the 
recommendation of any amendment. 

Pennsylvania was the second to ratify. This was done, 
without declaration or recommendation, on the 12th of De¬ 
cember, by a vote of 46 to 23. 

New Jersey ratified the Constitution December 18th. Her 
vote was unanimous. 

The next was Georgia, which was also unanimous in her 
ratification. It was done January 2d, 1788. 

Connecticut followed on the 9th of January, ratifying with¬ 
out any declaration, and without recommendations, by a vote 
of 128 to 40. 

The convention of Massachusetts commenced its sessions on 
the 9th of January, the day of the ratification by Connecticut, 
and continued in session till the 7th of February. The dis¬ 
cussion was warm and able, and the Constitution was ratified 
at last by a majority of only 19 in a convention of 355. Nine 
amendments were recommended, two or three of which were 
included in the amendments proposed by the First Congress. 

Maryland passed a vote of ratification April 28th. The vote 
stood 63 to 11, and there were no amendments or resolutions. 

South Carolina ratiBed the Constitution May 23d, 1788, by 
a vote of 149 to 73. Several amendments were recommended. 

New Hampshire the Ninth State.—The ninth State was 
New Hampshire. Her ratification was made June 21st, 1788, 
by a majority of 11. The convention had assembled in Feb- 


ITS RATIFICATION BY THE STATES 


291 


rnary, but after a warm discussion had adjourned to the 18th 
of June. Three conventions were in session at the same time: 
that of Virginia having convened June 2d, and that of New 
York on the 17th. New Hampshire accompanied her rati¬ 
fication with twelve amendments, of which three were subse¬ 
quently embodied in the amendments proposed by Congress. 

As the Constitution was to become binding when nine 
States had ratified it, New Hampshire completed the num¬ 
ber. As soon as the intelligence of her action reached Con¬ 
gress, a committee was appointed to report an act for putting 
the Constitution into operation. 

Virginia the Tenth. —The tenth State in the order of rat¬ 
ification was Virginia. She ratified on the 25th of June, by 
a vote of 89 to 79. 1 It should be stated that this vote was 
taken before the convention knew of the action of New 
Hampshire. The members of the Virginia convention sup¬ 
posed that by her ratification she would make the number 
complete. The convention proposed many amendments, and 
accompanied their ratification with a declaration of rights. 
“ We, the delegates of the people of Virginia, ... do, 
in the name and in behalf of the people of Virginia, declare 
and make known that the powers granted under the Con¬ 
stitution, being derived from the people of the United States, 
may be resumed by them whenever they shall be perverted 
to their injury or oppression,” etc. 

Thi3 shows very clearly the opinion of the majority of the 
members of the convention as to the source of the powers 
granted under the Constitution. These powers came, not 
from the States, but from the people of the United.States. 

New York the Eleventh —New York was the eleventh 
State to ratify the Constitution. The opposition was very 
strong, and it was for some time doubtful whether the vote 

1 The date usually given is June 26th. The vote of ratification was on the 2"»th ; an 
engrossed form of the ratification was read and signed by the president on the 26th. 
—Elliot, III., page 656. 


292 


THE CONSTITUTION 


of ratification could be carried. Two of the three delegates 
sent by New York to the Convention which framed the Con¬ 
stitution left the Convention when they became satisfied that 
a new instrument would be framed. These two delegates— 
Messrs. Lansing and Yates—as well as Mr. Hamilton, were 
in the State convention. A form of ratification was pro¬ 
posed which provided that the act of ratification was made 
“ on condition” that Congress would not exercise certain 
powers till a general convention should be called for propos¬ 
ing amendments. The words “ on condition” were finally 
stricken out, and the words “in full confidence” substi¬ 
tuted ; though the vote was 31 to 29. In this form the rat¬ 
ification was voted, 30 to 27, on the 26th of July. 

A long declaration of rights was made, and a great number 
of amendments were proposed. 

Action of North Carolina.—The convention of North Car¬ 
olina commenced its session July 21st, but adjourned on the 
2d of August, after passing a resolution that a declaration 
of rights and certain amendments ought to be laid before 
Congress and a convention which might be called for amend¬ 
ing the Constitution, previous to its ratification by North 
Carolina. This was adopted by 184 to 84. More than a 
year later another convention was held, and, on the 2lst of 
November, 1789, North Carolina ratified the Constitution by 
a majority of 11. This was more than eight months after 
the Constitution had gone into operation. This ratification 
was accompanied with a bill of rights and many amendments, 
mostly like those of Virginia. It should be noted that del¬ 
egates from North Carolina, and one of those from Rhode 
Island, continued in the Continental Congress to the last, 
and delegates from both States voted on questions pertaining 
to the Constitution as late as August 6th, 1788. 

Action of Rhode Island.—Rhode Island sent no delegates 
to the Convention which framed the Constitution. When 
that instrument was received from Congress, the legislature 


ELECTION OF PRESIDENT AND CONGRESSMEN 293 

caused it to be published and circulated among the people, 
but did not call a convention to ratify it. Instead of this 
they referred the adoption of it to the people in their town 
meetings for the purpose of having it rejected. There were 
but four thousand legal voters in the State, and of the small 
minority who favored the adoption of the Constitution few 
voted. The votes against it were 2,708 ; those in favor, 232. 
This was in March, 1788. After an interval of more than 
two years Rhode Island called a convention, which ratified 
the Constitution on the 29th of May, 1790. 

The ratification of New Hampshire, which was the ninth 
in order, was received by Congress July 2d, 1788. A commit¬ 
tee was appointed on the same day to examine the various 
ratifications and report an act for putting the Constitution 
into operation. The only member who voted against the ap¬ 
pointment of a committee was Mr. Yates, of New York, who 
left the Constitutional Convention and voted against the rati¬ 
fication of the Constitution in the convention of New York. 

Election of President and Congressmen. —The committee 
reported, on the 14th of July, an act which was debated till 
the 13th of September, when the following resolution was 
adopted : 

“ Resolved, That the first Wednesday in January next be 
the day for appointing electors in the several States which, 
before the said day, shall have ratified the said Constitution ; 
that the first Wednesday in February next be the day for the 
electors to assemble in their respective States and vote for a 
President; and that the first Wednesday in March next be 
the time, and the present seat of Congress [New York] the 
place, for commencing proceedings under the said Constitu¬ 
tion.^ 

The first Wednesday in March of the year 1789 happened 
to be the fourth day, which thus became the initial day of our 
governmental year. On the 4th of March each new Congress 


294 


THE CONSTITUTION 


commences its existence, and on this day the President is 
inaugurated. 

Elections of senators and representatives were held in the 
several States, and the first Congress under the Constitution 
met at New York on the 4th of March, 1789. For want of a 
quorum the organization was not effected till the 1st of April 
in the House and the 6th of April in the Senate. The elec¬ 
toral votes were then counted in the presence of both houses. 

Washington the First President. —George Washington was 
found to have been elected President by a unanimous vote 
(69); and John Adams was declared Vice President, as hav¬ 
ing the next highest number (34), though it was less than a 
majority. Mr. Adams took the chair as president of the Sen¬ 
ate April 21st, and General Washington was inaugurated 
President April 30th, 1789, in the city of New York. 

Thus quietly the government went into operation under the 
new Constitution. It seems extraordinary that a President 
should have been unanimously elected when we remember the 
great opposition which the Constitution encountered, and the 
fact that the new President had presided over the Convention 
which framed that instrument. At the expiration of his 
first term, President Washington was again elected by a unan¬ 
imous vote, fifteen States now voting while before there had 
been but ten. 1 Vermont and Kentucky had been admitted 
into the Union before the second presidential election. Since 
the administration of President Washington, no President has 
received the votes of all the electors. 

Real Character of the Constitution.— Those who had op¬ 
posed the Constitution in the State conventions gave in their 
acquiescence when they found that the people were in favor 
of it. The dangers which had been feared were found to be 
imaginary. The Constitution has proved itself to be just what 

1 At the time of the first election, North Carolina and Rhode Island had not ratified the 
Constitution, and the two houses of the New York legislature disagreed as to the mode 
of choosing electors. 


ITS SUCCESS 


295 


the nation needed. 1 Once only has there been a determined 
effort to overthrow it. To effect this, an interpretation was 
placed upon the Constitution the opposite of that attributed 
to it by those who opposed its ratification in 1787 and 1788. 
Patrick Henry, and those who agreed with him, voted against 
ratifying the Constitution because it was the constitution of 
a nation and not of a league of States. In 1861 the people 
of a portion of the States claimed the right of peaceful seces- 
sion, because, as they affirmed, the government was a league. 
Had it been so understood when the adoption of the Consti¬ 
tution was under discussion in the State conventions in 1788, 
those who were the most strongly opposed to it would have 
been the most eager to adopt it. 

i Sir Henry Sumner Maine, writing in 1885, speaks of the signal success of the Consti 
tntion of the United States, and affirms it to he “ much the most important political i»« 
strumeat of modern times .”—Popular Government, page 195. 


CHAPTER VI. 

The Admission of New States—The Territorial Governments. 

At the birth of the nation, July 4th, 1776, there were thir¬ 
teen States; in 1912 there were forty-eight. The Constitution 
went into operation when only eleven had ratified it; but the 
other two gave their ratifications shortly after. The relation 
of these two to the others, if they had refused to ratify, has 
been discussed in a former chapter (pages 263-265). 

Congress has admitted thirty-five new States into the Union. 
Of these ten were formed entirely and two others mostly 
from territory belonging to the United States or to individual 
States when the Constitution was adopted; and thirteen came 
wholly or in large part from the Louisiana purchase. 

Vermont, March 4 th, 1791 .—The first State admitted into 
the Union after the adoption of the Constitution was Ver¬ 
mont. The people of Vermont, in January, 1777, proclaimed 
themselves a free and independent State. In December of 
that year the same convention which had proclaimed the in¬ 
dependence of the State, adopted and put into operation a 
constitution. But as the territory was claimed by New York, 
opposition was made by that State to her admission into the 
Union. It was not till the year after the Constitution of the 
United States went into operation that New York, by her 
commissioner, consented to relinquish her claim to soil and 
jurisdiction, Vermont paying the sum of thirty thousand 
dollars. The formal consent of New York was given March 
6 th, 1790, by her legislature. Application was made by Ver¬ 
mont for admission February 9th, 1791, and an act, to take 
effect on the 4th of March, was approved February 18th. 

296 


VERMONT, KENTUCKY, TENNESSEE 


m 


Vermont, the first of the new States, thus became an integral 
part of the Union March 4th, 1791. She came in with the 
constitution which her convention had adopted fourteen years 
before, and which has remained substantially the same to the 
present time. 

Kentucky, the second new State, was admitted June 1st, 
1792. As Vermont was formed from a part of New York, so 
Kentucky was formed from a part of Virginia. The question 
of forming a new State from that portion of Virginia known 
as the District of Kentucky, began to be agitated as early as 
1784. A number of conventions were held, but no results 
followed till December 18th, 1789, when Virginia passed an 
act giving her consent to a separation, to take place June 1st, 
1792. On the 4th of February, 1791, Congress, in answer to 
a petition from a convention in Kentucky, consented to her 
admission, which was to take place June 1st, 1792, according 
to the agreement with Virginia. 

Tennessee, June ist, 1796 .—The third State admitted into 
the Union was Tennessee, June 1st, 1796. This was originally 
a part of North Carolina. Like Vermont, Tennessee had once 
proclaimed herself independent. She called herself the State 
of Franklin (or Frankland), elected officers, and set up a 
government separate from North Carolina (1784). The at¬ 
tempt to maintain the authority of this government was, how¬ 
ever, unsuccessful; and by 1788 North Carolina was again 
in control. 

O 11 the 25th of February, 1790, North Carolina made a ces¬ 
sion to the United States of her claim to the territory lying 
between the mountains and the Mississippi, with this among 
other conditions : “ That the territory so ceded shall be laid 
out and formed into a State or States, containing a suitable 
extent of territory, the inhabitants of which shall enjoy all the 
privileges, benefits, and advantages set forth in the ordinance 
of the late Congress for the government of the western terri¬ 
tory of the United States.” 


298 


THE HEW STATES 


On the 2 d of April of the same year, Congress accepted the 
cession, and on the 26th of May passed an act organizing the 
“ Territory of the United States south of the river Ohio." 
In July, 1795, the territorial legislature ordered a census to be 
taken to ascertain whether the population amounted to 60,000, 
this number entitling the Territory to admission into the 
Union as a State by the terms of the Ordinance of 1787 and 
the deed of cession. The census showing a sufficient popu¬ 
lation, a convention was called to form a State constitution. 
This body met in January, 1796, and on the 6 th of February 
adopted a constitution. A copy was forwarded to the Presi¬ 
dent of the United States in the same month, with a notifi¬ 
cation that on the 28th of March the territorial government 
would cease., The peculiar action of Tennessee in demand¬ 
ing rather than asking admission into the Union is to be ex¬ 
plained by her understanding of the Ordinance of 1787. A 
very earnest debate in Congress followed, but finally an act 
for admission was passed ; it was approved June 1 st. Ten¬ 
nessee was the first State admitted which had been previously 
governed as a Territory . 1 

Ohio Admitted, February 19 th, 1803 .—Three new States 
had thus been admitted into the Union before the close of 
the eighteenth century: Vermont, Kentucky,and Tennessee. 
The first in the nineteenth century was Ohio, admitted Feb¬ 
ruary 19th, 1803. The old States had ceded to the United 
States all their claims of jurisdiction, and, with a few excep¬ 
tions, of soil, to territory lying northwest of the Ohio Kiver. 
On the 13th of July, 1787, while the Convention was framing 
the Constitution at Philadelphia, Congress at New York 


1 The Census returns and some other official publications make Kentucky a part of 
the “ Territory of the U. S. south of the river Ohio,” and the same error is found in 
various other works. This Territory, organized May 26th, 1790, was limited to that 
ceded by North Carolina and a strip by South Carolina. Kentucky was regarded as a 
part of Virginia, and as such was admitted into the Union. Virginia had given her 
consent to the admission of Kentucky before North Carolina had made her cession, 
and before the Territory south of the Ohio had been organized. 


OHIO ; THE ORDINANCE OF 1787 


299 


passed an “ Ordinance for the Government of the Territory 
of the United States North-west of the River Ohio.” 

The Ordinance of 1787 was the most important act per¬ 
formed by Congress under the Articles of Confederation. 
“ Never, probably, in the history of the world, did a measure 
of legislation so accurately fulfill, and yet so mightily exceed, 
the anticipations of the legislators.” 1 Its object was declared 
to be to extend “the fundamental principles of civil and re¬ 
ligious liberty, which form the basis whereon these republics, 
their laws and constitutions, are erected ; to fix and establish 
those principles as the basis of all laws, constitutions, and 
governments which forever hereafter shall be formed in the 
said Territory.” (The ordinance in full may be found in the 
Appendix.) 2 

The Territory embraced all the land which belonged to the 
United States northwest of the Ohio River. It extended from 
Pennsylvania to the Mississippi, and from the Ohio to the 
Great Lakes. The ordinance provided for its division into 
not less than three States, nor more than five. Five States 
have been organized : Ohio, Indiana, Illinois, Michigan, and 
Wisconsin. The territorial government was organized soon 
after the passage of the ordinance. The government was 
vested in a governor and judges; but when there should be 
5,000 free males of full age, a territorial legislature might be 
elected. The first governor was General Arthur St. Clair, 
who was president of Congress when elected. He entered 
upon his duties in July, 1788, at Marietta. The first terri¬ 
torial legislature met at Cincinnati, September 16th, 1799. 

In May, 1800, the Territory was divided ; the western por- 

1 Chase’s Statutes of Ohio. 

a This ordinance was enacted immediately after an association of Revolutionary 
officers had proposed to Congress to buy a large tract of land on the Ohio for the pur¬ 
pose of settlement. These men wanted the protection of a good government, and 
this o-dinance was framed in accordance with their wishes. Some of its best provisions 
are known to have been incorporated at the suggestion of the agent of the association, 
Rev. Manasseh Cutler, of Massachusetts. The settlement was made at Marietta, 
April 7th, 1788, under the leadership of General Rufus Putnam. 


300 


THE NEW STATES 


tion being called the Territory of Indiana, of which W. H. 
Harrison, afterward President, was made governor. April 
30th, 1802, Congress passed an act to enable the people of the 
eastern division to form a constitution and State government. 
The convention met at Chillicothe, November 1st, framed a 
constitution, and adjourned on the 29th. The constitution 
was not submitted to the people. On the 19th of February, 
1803, Congress passed an act making Ohio a judicial district 
of the United States, and thus constituted it a State. 1 

Louisiana came next into the Union, April 30th, 1812. 
About the time Ohio was admitted, in 1803, a treaty was 
made with France, in which that power ceded to the United 
States the vast territory known then as Louisiana, lying be¬ 
tween the Mississippi River and the Rocky Mountains. By 
this purchase the area of the United States was more than 
doubled. From it the following States have been formed : 
Louisiana, Arkansas, Missouri, Iowa, part of Minnesota (the 
rest being from the Northwest Territory), North Dakota, 
South Dakota, Nebraska, most of Kansas, most of Montana, 
most of Wyoming, a large part of Colorado, and most of 
Oklahoma. 

A temporary government was provided the year of the 
treaty, 1803, and March 26th, 1804, Congress divided the 
region into two territories—the Territory of Orleans and the 
District of Louisiana. March 2d, 1805, an act was passed 
authorizing a constitution and State government in the Ter¬ 
ritory of Orleans when its free inhabitants should number 

1 The day of adjournment of the convention, November 29th. 1802. is sometimes given 
as the date of admission, because of the language of the enabling act—“ the said State, 
when formed, shall be admitted into the Onion.” But the same words are in the enabling 
acts for Indiana, Illinois, and most of the States admitted since, yet for each of them 
there was a d.stinct act of admission. There is no reason why an enabling act and the 
framing of a constitution should be sufficient for Ohio and not sufficient for all other 
States. In January, 1803. President Jefferson nominated to the Senate persons for public 
office at Mar'etta m “the Northwest Territory ” The President of the United States 
regarded this red on as then a Territory and not a State. March 1st. just after the act 
of February 19th. const : tuting the State of Ohio, he nominated Charles VV. Byrd for 
United States District Judge in “ the State of Ohio.” 


LOUISIANA, INDIANA, MISSISSIPPI, ILLINOIS, ALABAMA 301 

60,000. On the 20th of February, 1811, an act was passed to 
enable the people to form a constitution and State govern¬ 
ment. This was done January 22d, 1812, and the State was 
admitted into the Union by act of Congress, April 8th, 1812, 
to take effect April 30th of that year. 

Indiana, formed from a part of the Northwest Territory, 
was admitted December 11th, 1816. The Territory of In¬ 
diana, formed May 7th, 1800, was divided January 11th, 
1805, the Territory of Michigan being established. It was 
again divided, February 3d, 1809, the Territory of Illinois 
being established. The people of Indiana Territory having 
applied for admission into the Union, an enabling act was 
passed by Congress, April 19th, 1816, and a constitution was 
formed June 29th. A joint resolution admitting Indiana 
into the Union was approved December lltli, 1816. 

Mississippi, formed mostly from territory ceded by Geor¬ 
gia, April 24th, 1802, and by South Carolina, August 9th, 
1787, was admitted December 10th, 1817. Congress estab¬ 
lished the territorial government April 7th, 1798. An act 
to enable the people of the western part of the Mississippi 
Territory to form a constitution and State government was 
passed March 1st, 1817. A constitution was formed August 
15th, 1817, and the State was admitted by act of Congress 
December 10th, 1817. 

Illinois, formed from the Northwest Territory, was ad¬ 
mitted December 3d, 1818. The Territory of Illinois was 
established February 3d, 1809. A memorial of the legislative 
council to be allowed to form a State government having been 
presented to the House of Representatives in January, 1818, 
an enablingact was passed April 18th. The constitution was 
formed August 26th, and the State was admitted by joint 
resolution December 3d, 1818. 

Alabama, formed mostly from a part of the territory ceded 
to the United States by South Carolina and Georgia, was ad¬ 
mitted December 14th, 1819. The eastern part of Mississippi 


302 


THE HEW STATES 


Territory was made a separate Territory, under the name of 
Alabama, by act of Congress, March 3d, 1817. Congress, 
having been memorialized, passed an enabling act March 2d, 
1819, and a constitution and State government were formed 
August 2d, 1819. The State was admitted by joint resolution 
December 14th, 1819. 

Maine was formed from a part of Massachusetts, and became 
a State March 15th, 1820. A project was formed as early as 
1786 to erect a separate State from that part of Massachusetts 
known as the District of Maine, and a convention had once 
met at Portland to consider it. The plan was, however, aban¬ 
doned for the time. On the 19th of June, 1819, the legis¬ 
lature of Massachusetts gave its consent to the formation 
of a new State, if the people of the district desired it, and 
would consent to certain conditions. This having been done, 
a convention formed a constitution October 29th, which was 
ratified by the people December 6th. A petition was then 
presented to Congress, and the State was admitted by an act 
passed March 3d, 1820, to take effect March 15th. 

Representatives Allowed to New States.—Maine was the 
third State formed from a part of another. The others, Ver¬ 
mont and Kentucky, when admitted, were allowed two rep¬ 
resentatives each ; but Maine was declared to be entitled 
to seven, Massachusetts having thirteen ; Massachusetts had 
twenty before. The new States which had been Territories 
had each but one representative till the next census after its 
admission. 

Missouri, formed from the Louisiana purchase, was admit¬ 
ted August 10th, 1821. As before stated, the act of March 
26th, 1804, divided the territory purchased from France, 
known as the Louisiana purchase, into two territories. AVhat 
is now the State of Missouri was a part of the northern terri¬ 
tory, which was called the District of Louisiana. For about 
a year this was under the governor and judges of Indiana Ter¬ 
ritory. On the 3d of March, 1805, a separate government was 


MAINE, MISSOURI, ARKANSAS 


303 


provided, and the name was changed to Territory of Louisiana. 
On the 4th of June, 1812, the name was changed to Missouri 
Territory. March 2d, 1819, the southern part was separated 
and erected into a new Territory, called Arkansas Territory. 
Congress having been memorialized to admit Missouri as a 
State into the Union, an act was passed March 6th, 1820, au¬ 
thorizing the formation of a constitution and State govern¬ 
ment. There was a division in Congress as to Missouri, as to 
whether it should be admitted with slavery. The enabling 
act was a compromise. It provided that Missouri might be 
admitted as a slave State, but that from all other parts of the 
Louisiana purchase lying north of the south line of Missouri 
—36° 30' north latitude—slavery should be forever excluded. 
This act was known as the “ Missouri Compromise.” 

On the 19th of July the people formed a constitution, which 
was laid before Congress November 16th. March 2d, 1821, 
a resolution providing for the admission of Missouri into the 
Union on a certain condition was approved. The condition 
having been accepted June 26th, 1821, the President issued a 
proclamation, August 10th, 1821, declaring the admission 
complete. 1 

Arkansas, formed out of part of the territory ceded by 
France in 1803, was admitted June 15th, 1836. 

The Territory of Arkansas was established March 2d, 1819, 
having been taken from the Territory of Missouri. On the 
30th of January, 1836, a constitution was formed by a con¬ 
vention, and this was laid before Congress March 1st, with a 
memorial asking admission into the Union. An act to admit 
was approved June 15th, 1836. There was no enabling act 
passed by Congress in the case of Arkansas. All the States 
admitted up to this time that had existed as Territories, ex¬ 
cept Tennessee, had been authorized by Congress to form 

i The constitution of Missouri excluded from the State all f ee people of color. The 
condition imposed by Congress was that the legislature should declare by solemn act 
that no law should ever be passed to carry into effect that provision ot the constitution. 


304 


THE NEW STATES 


constitutions and State governments. Tennessee claimed the 
right of admission under the deed of cession from North Car¬ 
olina to the United States ; and Arkansas claimed a like right, 
by virtue of the treaty with France ceding to the United 
States the province of Louisiana. This treaty provided that 
“ The inhabitants of the ceded territory shall be incorporated 
in the Union of the United States and admitted as soon as 
possible, according to the principles of the Federal Constitu¬ 
tion, to the enjoyment of all the rights, advantages, and im¬ 
munities of citizens of the United States.” It has been held 
by legal writers that the action of these Territories in form¬ 
ing constitutions and State governments without authority 
from Congress was irregular, and that Congress was not re¬ 
quired to admit them at the time of application. 

Michigan, formed from the Northwest Territory, was ad¬ 
mitted January 26th, 1837. 

The Territory of Michigan was formed from part of In¬ 
diana Territory January 11th, 1805. The legislative council, 
in accordance with a vote of the people, having memorialized 
Congress for admission into the Union, a bill was reported as 
an enabling act for that purpose in February, 1833 ; but, on 
account of the dispute between Ohio and Michigan as to 
boundaries, it was not passed. On the 6th of September, 
1834, the legislative council of the Territory provided for 
taking the census, and, afterward, for forming a constitution. 
This constitution having been ratified by the people October 
5th, 1835, a State government was organized. A copy of the 
constitution was then sent to the President, with a request for 
admission into the Union. As the southern boundary which 
Michigan had given in her constitution was south of the 
northern boundary of Ohio, she could not of course be re¬ 
ceived without a change. Strong opposition was made to re¬ 
ceiving her at all without an enabling act ; but finally an act 
of admission was passed, June 15th, 1836, admitting her on 
the condition that a convention of delegates, elected by the 


MICHIGAN, FLORIDA, TEXAS 


305 


people, should assent to the boundaries prescribed by Con¬ 
gress. This was done December 15th, 1836, and the State was 
admitted by act of Congress, approved January 26th, 1837. 

Florida, March 3 d, 1845 .—Florida was formed out of the 
territory ceded by Spain to the United States by treaty of 
February 22 d, 1819. It was admitted into the Union March 
3d, 1845. A territorial government was established by act of 
Congress, March 30th, 1822. No enabling act was passed in 
the case of Florida. The convention which framed her con¬ 
stitution was called by the legislature of the Territory. She 
based her right to admission on the treaty with Spain, as 
Michigan had based hers on the ordinance of 1787, and Ten¬ 
nessee hers on the deed of cession from North Carolina. She 
applied for admission in February, 1839, presenting the pro¬ 
ceedings of her convention, a constitution, etc., but she was 
not admitted till March 3d, 1845, as stated above. 

Missouri, Arkansas, Michigan, and Florida each came into 
the Union with only one representative in Congress. 

Texas.—The next State admitted was Texas, which came 
in by a joint resolution of Congress, approved December 29th, 
1845. Texas, originally a part of Mexico, had become an in¬ 
dependent republic. She declared her independence in 1835, 
and the United States recognized it in 1837. In 1840 Great 
Britain and France did the same. Mexico had never ac¬ 
knowledged the independence of Texas. A treaty for the 
annexation of Texas to the United States, negotiated by Mr. 
Calhoun, Secretary of State, was laid before the Senate early 
in 1844, but it was rejected by a large majority. The plan of 
annexation by joint resolution was then attempted, and the 
resolution was adopted in March, 1845. This required the 
assent of Texas, which was promptly given, and annexation 
was completed in December. Provision was made for the 
formation of four new States from the same territory, and 
the principle of the Missouri Compromise was made appli¬ 
cable to such States. 


306 


THE NEW STATES 


Two representatives in Congress were allowed The case 
of Texas differs from all other new States in this, that before 
it became a State, being an independent republic, its people 
were in no respect subject to the government of the United 
States. 

Iowa was the next of the new States admitted. Iowa was 
admitted December 28th, 1846, and was formed from a part 
of the Louisiana purchase. 

Confusion lias arisen as to the origin of this State, and some writers 
represent it as having been formed from the original territory of the 
United States. This confusion is owing to the fact that the Territory of 
Iowa was formed from that of Wisconsin, and this from that of Michi¬ 
gan; and as Michigan and Wisconsin were both formed from the North¬ 
west Territory, the inference was natural that Iowa was also formed from 
that Territory. 

Prior to the purchase of Louisiana, in 1803, the United States owned 
no territory west of the Mississippi. The Northwest Territory, organized 
by the Ordinance of 1787, embraced the territory northwest of the Ohio 
and east of the Mississippi. This territory was divided in 1800, and the 
western part was called the Territory of Indiana. In 1805 the Territory 
of Michigan was established, and in 1809 that of Illinois. The Territory 
of Michigan, at that time, included the territory north of Ohio, Indiana, 
and Illinois, and east of the Mississippi. But, on the 28th of June, 1834, 
an act of Congress attached to the Territory of Michigan all the territory 
of the United States west of the Mississippi and north of the State of 
Missouri. This, of course, included what is now Iowa. On the 20th of 
April, 1836, the territorial government of Wisconsin was established. 
Iowa thus became a part of the Territory of Wisconsin. This Territory 
was divided, and the new Territory of Iowa was established on the 12th 
of June, 1838. 

No enabling act was ever passed by Congress for Iowa. In 
February, 1841, a bill to that effect was reported to the House 
of Representatives, but it was not passed. Three years after, 
the President communicated to the Senate a memorial from 
tne legislative assembly for admission into the Union. And 
on December 9th of the same year a memorial of a conven- 


IOWA, WISCONSIN 307 

tion, with a copy of a constitution, was received in the 
Senate. 

On the 3d of March, 1845, an act for the admission of 
Iowa was approved. This act required the assent of the peo¬ 
ple of Iowa to be given, after which the President might by 
proclamation announce the admission without further action 
on the part of Congress. This course, however, was not 
adopted. On the 18th of May, 1846, another constitution 
was formed, and on this second constitution the act of final 
admission was passed December 28th, 1846. Iowa was al¬ 
lowed two representatives. 

Wisconsin was admitted May 29th, 1848. This State was 
formed from the Northwest Territory, making the fifth 
State, and thus completing the number provided for in the 
Ordinance of 1787. The others, as we have seen, are Ohio, 
Indiana, Illinois, and Michigan. 

The Territory of Wisconsin was established April 20th, 
1836, having been formed from that of Michigan. On the 
20 th of March, 1845, a resolution of the legislative council of 
Wisconsin, asking that provision be made for taking a census 
and holding a convention to form a State constitution, was 
presented in the Senate. An enabling act was approved 
August 6th, 1846. A State constitution was formed Decem¬ 
ber 16th, 1846, and in January it was presented in Congress. 
On the 3d of March, 1847, an act for the admission of 
Wisconsin was passed ; the admission to be on the condition 
of the assent of the qualified voters to the constitution. The 
President was to announce the assent by proclamation, and 
then the admission was to be complete. 

But, as in the case of Iowa, this plan was not carried out. 
The constitution was rejected by the people in 1847, and 
another convention was held and another constitution was 
adopted February 1st, 1848. This was ratified by the people. 
The preamble of the act of admission, approved May 29th, 
1848, recognized this constitution as republican, making it 


308 


THE NEW STATES 


thus the basis of admission. The boundaries of the State 
were the same as prescribed in the enabling act of August 
6 th, 1846. That act gave the State two representatives till 
the next census, but the act of admission provided for three 
from and after March 4th, 1849. 

California was admitted into the Union September 9th, 
1850. It was formed from a part of the territory ceded to the 
United States by Mexico in the treaty made at Guadalupe 
Hidalgo, February 2d, 1848. By this treaty the United States 
obtained, besides California, what is now Nevada, Utah, most 
of New Mexico and Arizona (a strip in the south not being ac¬ 
quired till 1853), and portions of Wyoming, Colorado, Kansas, 
and Oklahoma. 1 California never had a territorial govern¬ 
ment. Most of the new States existed previously as Terri¬ 
tories ; four—Maine, Vermont, Kentucky, and West Virginia 
—were formed from parts of other States ; one—Texas—was 
an independent republic, and was annexed to the United 
States by joint resolution of Congress. California differed 
from all the rest in her previous condition. Efforts were 
made in Congress to pass acts to establish a territorial gov¬ 
ernment, but they all failed. 

General .Riley, the military governor, called a convention 
which on the 13th of October, 1849, formed a constitution. 
This was ratified by the people on the 13th of November, and 
the State was admitted September 9th, 1850. Two represent¬ 
atives were allowed her. 

Minnesota was admitted May 11th, 1858. This State, lying 
on both sides of the Mississippi River, was formed in part 
from the Louisiana purchase and in part from the Northwest 
Territory. A territorial government was established March 
3d, 1849. On the 26th of February, 1857, Congress author¬ 
ized the people of the Territory to form a constitution and 

1 Partp of New Mexico, Colorado. Kansas, aud Oklahoma were claimed by Texas, but 
this State relinquished her claim upon payment of $10,000,000 by the national govern¬ 
ment. 


CALIFORNIA, MINNESOTA, OREGON 


309 


State government preparatory to tlieir admission into the 
Union. A convention was held accordingly, and a constitu¬ 
tion was formed August 29th, which was ratified by the peo¬ 
ple October 13 th. 

u The two political parties in the convention, Republicans and Demo¬ 
crats, disagreeing as to the organization of the body, formed separate con¬ 
ventions which ran parallel courses, each claiming to be the only legiti¬ 
mate convention. Two constitutions were reported, and it seemed that 
the people were to be embarrassed by the necessity of choosing between 
them, when, towards the close of their respective sessions, a conference 
was had between the two bodies, and a single constitution reported to and 
adopted by them both. It seems clear that this mode of organizing has 
decided advantages. A constitution acceptable to all political parties in 
a State must be free from partisan legislation; must contain, as it ought, 
only measures whose policy or expediency had been thoroughly settled in 
the public mind.” 1 

This constitution was approved by Congress, and the State 
was admitted May 11th, 1858, with two representatives. 

Oregon was admitted February 14th, 1859. Some deem it 
a part of the Louisiana purchase, but the better view is that 
that province embraced only the Mississippi valley. Early 
in the nineteenth century there were several different claim¬ 
ants of the country between California and Alaska—the 
United States, Great Britain, and Spain being the principal 
ones. Our claim rested chiefly on the discovery of the Co¬ 
lumbia River and our early occupation. In 1819 Spain relin- 
quished to us her claim to all north of the 42d parallel, and 
in 1846 Great Britain did the same as to all south of the 49th 
parallel. There is thus a fourfold title : the right by discov¬ 
ery, and by cessions from France (if France had any claim), 
Spain, and Great Britain. A territorial government was es¬ 
tablished August 14th, 1848, over “ that part of the territory 
of the United States which lies west of the summit of the 
Rocky Mountains, north of the 42d degree of north latitude/ 

1 Jameson, page 263. 


310 


THE HEW STATES 


The northern part was erected into the Territory of Washing¬ 
ton March 2d, 1853. 

A convention was called by the legislature of the Territory 
of Oregon to meet in August, 1857, and in September a con¬ 
stitution was formed, which was submitted to the people for 
ratilication, and approved. No enabling act had been passed 
by Congress in her case. She was declared entitled to one 
representative. 

Kansas was admitted January 29th, 1861. It was formed 
almost wholly from a part of the Louisiana purchase, but the 
southwest corner formerly belonged to Mexico. It was or¬ 
ganized as a Territory May 30th, 1854, by the act known as 
the Kansas-Nebraska Act—the two Territories being estab¬ 
lished by the same act. This act caused great excitement 
throughout the country. The Missouri Compromise of 
1820 was understood to mean that there should be no more 
slave States north of the parallel of 36° 30'. This had been 
reaffirmed in the joint resolution of March 1st, 1845, for an¬ 
nexing Texas, and again in the act defining the boundaries of 
Texas and establishing the Territory of New Mexico, passed 
September 9th, 1850. 

Missouri Compromise Repealed.—Kansas and Nebraska 
were both north of the parallel of 36° 30', but the act by 
which they were organized as Territories provided that when t 
they should be admitted as States into the Union they should 
be received with or without slavery, as their constitutions 
might prescribe at the time of their admission. The same act 
declared the Missouri Compromise inoperative and void. 

On the 23d of October, 1855, a convention at Topeka formed a consti¬ 
tution. This was a spontaneous movement on the part of those known as 
the Free State party, not having been called either by the governor or the 
territorial legislature. The constitution was submitted to the people and 
ratified by a large majority of those who voted—the other party not vot¬ 
ing. Under this constitution an election of State officers was held Janu¬ 
ary 15th, 1856, and a State government was organized. President Pierce 


KANSAS, WEST VIRGINIA 


311 


issued a proclamation against this government in February, and on the 4th 
of July its legislature was forcibly dispersed by an officer of the United 
States army. 

The territorial legislature also provided for a convention, which assem¬ 
bled at Lecompton, September 5th, 1857, and framed the constitution 
known as the Lecompton constitution. This established slavery. Appli¬ 
cation for admission into the Union was then made, but the bill as intro¬ 
duced was not passed. A bill for conditional admission was passed May 
4th, 1858, which required that the constitution, with certain propositions 
from Congress, should be submitted to the people. This was done on the 
3d of August of that year, when the constitution was rejected by ten 
thousand majority. 

Another convention was held at Wyandotte, and a consti¬ 
tution was formed in July, 1859. 1 This was submitted to the 
people October 4th, and ratified by a majority of four thou¬ 
sand. Under this constitution Kansas was admitted into the 
Union January 29th, 1861. She was declared to be entitled 
to one representative. 

West Virginia was admitted into the Union June 19th, 
1863. It was formed from a part of Virginia. The circum¬ 
stances of the formation of this new State were peculiar. 
On the 17th of April, 1861, a body of men, styling themselves 
the convention of Virginia, passed an ordinance of secession 
from the United States. Most of the State officers joined the 
movement, carrying with them the public funds and the archives 
of the State. The territory was still a part of the national 
domain, though mostly in the possession of people hostile to 
the United States. The loyal people, whom alone the Consti¬ 
tution or government of the United States could recognize as 
the people of Virginia, were without a State government. 

In this exigency they took the reconstruction of the State 
government into their own hands. They called a convention, 
which met at Wheeling June 13th, 1861, and passed an ordi- 

1 The act of May 4th, 1858. provided for another convention in case the constitution 
then to be submitted to the people should be rejected. Thus for the Wyandotte consti¬ 
tution there was an enabling act, which was not the case as to the others. 


312 


THE NEW STATES 


nance providing for the appointment of a governor and othei 
State officers, and requiring the general assembly to meet 
July 1st. This convention also passed an ordinance to pro¬ 
vide for the formation of a new State out of a portion of the 
territory of Virginia. The people within the prescribed 
boundaries were to vote on the question of a new State, and 
polls were also to be opened for the election of delegates to a 
convention to form a constitution. The vote having been 
largely in favor of a new State, the convention met at Wheel¬ 
ing November 26th, and framed a constitution which was 
adopted by the people. 

May 13th, 1862, the reconstructed legislature of Virginia 
gave consent to the formation of a new State. December 31st 
Congress passed an act admitting West Virginia, provided 
the people should ratify a proposed change in the constitu¬ 
tion. That being done, the President was to issue a procla¬ 
mation, and the admission was to be complete sixty days after 
the proclamation. The convention adopted the change Feb¬ 
ruary 17th, 1863. The vote of the people on the ratification 
of the amended constitution was taken March 26th, 1863, 
being largely in its favor. On the 20th of April the procla¬ 
mation was issued, and sixty days thereafter—June 19th, 
1863—West Virginia became one of the United States. She 
was allowed three representatives in Congress. 

In this case there was the consent of three parties—the 
State from which the new State was formed, Congress, and 
the people of the district set off. If it were doubted whether 
the body that met at Wheeling in July, 1861, was the general 
assembly of Virginia, the action of the United States govern¬ 
ment in its three departments must be deemed conclusive. 

Nevada was admitted into the Union October 31st, 1864, 
by the proclamation of the President. It was formed from a 
part of the territory obtained from Mexico by the treaty of 
February 2d, 1848. It was organized as a Territory March 
2d, 1861. In 1863 a constitution was formed and submitted 


WEV., NEBK., COLO., N. DAK., S. DAK. 313 

to the people, but rejected. On the 21st of March, 1864, an 
enabling act was passed by Congress, which provided for the 
holding of a convention on the first Monday of July. If a 
constitution should be framed, it was to be submitted to the 
people on the second Tuesday of October. The President of 
the United States, on being notified that such constitution 
had been ratified by the people, was to issue his proclamation 
without further act of Congress. Nevada was allowed one 
representative. 

Nebraska was admitted March 1st, 1867. This was a part 
of the Louisiana purchase. It was organized as a Territory 
May 30th, 1854. An enabling act was passed for it April 
19th, 1864. In January, 1867, Congress passed an act ap¬ 
proving its constitution, and admitting it on condition that 
there should be no denial of the elective franchise or of other 
rights because of race or color. The act, though vetoed by 
President Johnson, became a law. Nebraska became a State 
by proclamation of the President, March 1st, 1867. It had 
one representative. 

Colorado became a State August 1st, 1876. A part of it 
came from Louisiana and a part from the territory acquired 
from Mexico. It was organized as a Territory February 28th, 
1861. A bill to acimit it as a State was passed in January, 
1867, but was vetoed by the President. An enabling act was 
passed March 3d, 1875, and a constitution was formed. This 
was ratified by the people in July, 1876, and the President 
was duly notified thereof. It then, by the terms of the en¬ 
abling act, became his duty to declare the State admitted 
into the Union. It came in with one representative. 

North Dakota and South Dakota were admitted November 
2 d, 1889, being divisions of the Territory of Dakota, which 
was organized March 2d, 1861. It was included in the 
French cession of 1803. The inhabitants voted in favor of 
a division of the Territory in 1887. The enabling act was 
passed by Congress February 22d, 1889. In accordance with 


314 


THE NEW STATES 


this act, in each division of Dakota a constitutional conven¬ 
tion met on July 4th, and the constitutions adopted by them 
were ratified by popular vote on October 1st. 

Montana was admitted November 8th, 1889, having been 
organized as a Territory May 26th, 1864. It is chiefly from 
Louisiana, that part west of the Rocky Mountains being orig¬ 
inally a part of Oregon. The enabling act that was passed 
by Congress, February 22d, 1889, applied not only to the 
Dakotas but also to Montana and Washington ; under it a 
constitution was adopted by a convention that met July 4th 
at Helena, and this was ratified by the* people of Montana 
on October 1st. 

Washington was admitted November 11th, 1889. It was 
originally a part of Oregon, and was organized as a separate 
Territory March 2d, 1853. In accordance with the enabling 
act of February 22d, 1889, above described, a constitution 
was framed by a convention that met at Olympia, and this 
was accepted by the people October 1st. 

Idaho was admitted by act of Congress July 3d, 1890. It 
was originally a part of Oregon, and was organized as a Ter¬ 
ritory March 3d, 1863. A constitution was formed in July 
and adopted by the people of the Territory in November, 

1889. Congress had not passed any enabling act for Idaho ; 
by the act of July 3d it accepted and ratified the constitution 
already in existence. 

Wyoming was admitted by act of Congress July 10th, 

1890. It is chiefly from Louisiana, but partly from Mexico 
and Oregon. It was made a Territory July 25th, 1868. A 
constitution was framed in September, adopted by the peo¬ 
ple in November, 1889, and ratified by Congress in the act 
of admission. There was no enabling act in the case of 
Wyoming. Congress retains exclusive legislative rights over 
Yellowstone Park, but legal process of the State may be 
served within the Park. 

Utah was admitted January 4th, 1896, after adopting a 


MONTANA, WASHINGTON, ETC. 


315 


constitution forbidding polygamy. It is from the Mexican 
cession, and was organized as a Territory September 9th, 
1850. An enabling act was passed in July, 1894. The con¬ 
stitution was framed in March and adopted by the people in 
November, 1895. 

Each of the States admitted in 1889, 1890, and 1896 came 
in with one representative, except South Dakota, which was 
allowed two. 

Oklahoma was admitted November 16, 1907. It was 
formed mostly from part of the Louisiana purchase. This re¬ 
gion was for many years reserved as a home for Indians, and 
was called Indian Territory. A small portion was opened to 
settlement by white men on April 22,1889. On May 2, 1890, 
the western half of Indian Territory was organized as the 
Territory of Oklahoma. An enabling act for a new State, to in¬ 
clude both Oklahoma and what was left of Indian Territory, was 
passed June 16,1906. The constitution was framed in 1907, and 
ratified by vote of the people September 17. The enabling act 
provided that the new State should have five representatives. 

New Mexico was admitted January 6, 1912. It is from the 
Mexican cessions. New Mexico was organized as a Territory 
by act of September 9, 1850, and was reduced to its present 
area by the erection of Arizona Territory in 1863. On June 
16, 1906, Congress passed an enabling act for the formation of 
a new State to include both New Mexico and Arizona, provided 
that a majority of the voters in each Territory should consent; 
but this project was defeated by the adverse vote of Arizona. 
A new enabling act for both Territories to form separate States 
was passed June 20, 1910. The constitution of New Mexico 
was framed in November, 1910, and was accepted by vote of 
the people January 21, 1911. A substitute article on amend¬ 
ments was proposed by Congress August 21,1911, and accepted 
by the people at the first election of State officers, November 7, 
1911. By the provisions of the enabling act, New Mexico was 
allowed two representatives in Congress. 


316 


NEW STATES 


Arizona was admitted February 14, 1912. It is from the 
Mexican cessions. Arizona Territory was created February 
24, 1863. The enabling act was part of the same law (June 
20, 1910) as the enabling act of New Mexico. The constitu¬ 
tion of Arizona was framed in December, 1910, and accepted 
by vote of the people February 9, 1911. Congress, however, 
objected to the clause providing for the recall of officers by 
popular vote, and by resolution of August 21, 1911, made the 
admission of the State conditional on the people’s acceptance 
of a substitute clause excepting judges from liability to recall. 
This clause was accepted by the people at the first election of 
State officers, December 12, 1911. The new State came in 
with one representative. 

Classification of States. —The forty-eight States may be 
arranged with regard to their origin, as follows: Original 
States, thirteen —New Hampshire, Massachusetts, Connecticut, 
Rhode Island, New York, New Jersey, Pennsylvania, Dela¬ 
ware, Maryland, Virginia, North Carolina, South Carolina, 
Georgia. States formed wholly or mainly from territory 
originally belonging to the United States, or to individual 
States, twelve —Vermont, Maine, Kentucky, Tennessee, Missis¬ 
sippi, Alabama, Ohio, Indiana, Illinois, Michigan, Wisconsin, 
West Virginia. States formed wholly or mainly from terri¬ 
tory purchased by the United States, twelve —Florida, Louisi¬ 
ana, Arkansas, Missouri, Iowa, Kansas, Nebraska, South 
Dakota, North Dakota, Wyoming, Montana, Oklahoma. States 
from conquered territory, jive —California, Nevada, Utah, New 
Mexico, Arizona; from territory secured by discovery and 
cession, three —Oregon, Washington, Idaho; of mixed origin, 
two —Minnesota and Colorado; existing before as an independ¬ 
ent republic, one —Texas. 

If the thirty-five new States be arranged according to the 
mode of admission, they would be grouped as follows: Four 
were formed from other States—Vermont, Maine, Kentucky, 
West Virginia. One was annexed as a State—Texas. One 


TERRITORIES 


317 


other had not previously been a Territory—California. The re¬ 
maining twenty-nine had had territorial governments prior to 
their admission as States. As to these twenty-nine, there were 
enabling acts in twenty-one cases, and no enabling acts in eight. 

TERRITORIES AND DEPENDENCIES. 

Alaska. —Besides the States, the continental area of the 
United States includes the District of Columbia (pages 143- 
147), and Alaska, which was purchased from Bussia in 1867. 

Alaska is an organized Territory. It was made a customs collection 
district in 1868, and in 1884 was provided with a governor and a judge. 
Since 1912 it has had a legislature. It has a governor, four judges, dis¬ 
trict attorneys, and marshals appointed by the President with the approval 
of the Senate. It elects a delegate to Congress. When it was acquired, 
the laws of Oregon were extended over it as far as applicable. In 1898, 
however, a new criminal code, and in 1900 a new civil code, were enacted 
for its government. 

Hawaii, like Alaska, is an organized territory of the 
United States, and elects a delegate to Congress. It was 
organized June 14th, 1900, under the provisions of an act of 
Congress approved April 30th. The territorial legislature 
consists of a senate and a house of representatives; the 
members of both these houses are elected by vote of only 
those citizens who can read and write English or Hawaiian. 
The governor, secretary, judges, attorney, and marshal are 
appointed by the President with the approval of the Senate. 
The governor has the power to veto bills, but they may be 
passed over his veto by two thirds of the members of each 
house of the legislature. Other officers are appointed by the 
governor with the approval of the Hawaiian senate, or are 
chosen in accordance with the laws of the Territory. 

Previous History.—The Hawaiian Islands were united into one native 
kingdom about the beginning of the nineteenth century, and in 1829 the 
independence of this kingdom was recognized by the United States. A 
constitutional government was established there, and from time to time 
improved. But in January, 1893, as the result of a reactionary policy on 


318 


THE TERRITORIAL GOVERNMENTS 


the part of the reigning queen, Liliuokalani, there occurred a bloodless 
revolution in which the queen was deposed, and a provisional government 
was set up, pending annexation to the United States. The queen pro¬ 
tested against annexation, and claimed that the revolution had been 
brought about partly through the aid of the United States minister, who 
had summoned a landing party of United States marines to protect 
American property in the Hawaiian capital at the time of the uprising, 
and had established a protectorate, pending instructions from Washington. 
President Cleveland, who now came into power in our country, withdrew 
from the Senate a treaty which had been submitted to it by President 
Harrison, providing for annexation, and he also ended the United States 
protectorate. The party in power in the islands soon established the 
Republic of Hawaii; and after an unsuccessful effort to recover her 
throne, Liliuokalani formally relinquished her rights as sovereign. 

The Hawaiian Islands were finally annexed by the terms of a joint 
resolution of Congress, signed by President McKinley July 7th, 1898. 
The formal transfer of sovereignty took place August 12th, 1898; but, 
under the direction of the President, the former officers of the Republic 
of Hawaii continued to administer the government there until the estab 
lishment of the Territory. 

Porto Rico was among the islands ceded to the United 
States by Spain, as a result of the war of 1898. The island 
had been invaded by our troops, but hostilities were sus¬ 
pended before the conquest was completed, and the rest of 
the island was occupied by our army without resistance. It 
was governed by the President, chiefly through the War De¬ 
partment, until May 1st, 1900, when the act of Congress 
approved April 12th went into effect. This act established 
a civil government for Porto Rico, but did not make Porto 
Rico a Territory, nor did it extend the Constitution and laws 
of the United States to this island. Indeed, by the same 
act of April 12th, Congress provided a revenue for Porto 
Rico by imposing temporary duties on the trade of the island 
with the United States, and laying a duty on coffee imported 
into the island, though coffee was then admitted into the 
United States free of duty ; but if Porto Rico were con¬ 
sidered to be part of the United States, these provisions 


ISLAND POSSESSIONS 


319 


would have been impossible, by Article I., Section 8, Clause 
1 of the Constitution, which says “ all duties, imposts, and 
excises shall be uniform throughout the United States.” 
The Supreme Court has declared the act constitutional. 

Porto Rico has a governor appointed by the President and Senate for 
four years, with an annual salary of $8,000. There is an executive coun¬ 
cil of eleven members (five of whom must be natives of Porto Rico), 
appointed in the same manner. This council, and a house of delegates 
elected biennially by the people, form the two houses of the legislative 
assembly. The judges of the supreme and district courts are appointed 
by the President and Senate. There is no delegate to Congress, but 
there is a resident commissioner to the United States, who represents 
Porto Rico in transactions with all departments of our government. 

The Philippine Islands. —From the time of their discovery 
by Magellan in 1521 until 1898, with one brief interruption 
in 1762, the Philippine Islands belonged to Spain. In the war 
of 1898 the Spanish fleet in that colony was destroyed, and the 
capital city of Manila was captured, by the forces of the 
United States. By the terms of the treaty of Paris, in 1899, 
Spain ceded the Philippines to the United States, and the 
United States paid Spain $20,000,000. For many months after 
that time the government of the islands was purely a military 
one, as some of the Filipinos were in rebellion. In March, 
1900, however, a commission of five prominent men was 
appointed by the President to establish a civil government 
in the Philippines. By the act of July 1, 1902, Congress 
established a Philippine government somewhat like that of 
Porto Bico. In 1916 the government was made more like 
that of an organized territory, with both houses of the 
legislature elective. 

Guam was ceded to the United States by Spain, by the treaty ratified in 
1899. It is governed by the President through the Navy Department, the 
supreme local official being a navy officer who acts as governor. 

Tutuila._The Samoan islands, after 1881, were the subject of several 

treaties between Great Britain, Germany, and the United States— the 


320 


THE TERRITORIAL GOVERNMENTS 


countries having the greatest interests in the islands. Their object was 
to maintain peace and secure the rights of foreigners, and yet leave the 
Samoan kingdom independent and neutral. Disorder recurred, however, 
at the election of each new king, and finally to secure a more efficient 
government, the three powers, early in 1900, ratified a treaty by which 
the islands were divided between Germany and the United States, Tutuila 
and a few smaller islands falling to our share. These are governed in 
much the same way as Guam. 

The Panama Canal Zone was placed under the control of 
the United States by a treaty with Panama in 1904. It is a 
strip ten miles wide across the isthmus. It is under the ad¬ 
ministration of a governor appointed by the President. 

Cuba.—Our government over Cuba, 1899-1902 and 1906— 
1909, was anomalous. Cuba is an independent republic, but 
is to some degree under the protection of the United States. 

In the Cuban resolutions, which soon resulted in war with Spain in 
1898, Congress solemnly disclaimed any intention of exercising sover¬ 
eignty over the island for any longer period than should be necessary to 
establish order and a stable government to be maintained by the Cubans. 
Our occupation of Cuba, therefore, was purely military. 

On September 15th, 1900, in accordance with an order of the War 
Department, the people of the several provinces of Cuba elected delegates 
to a constitutional convention which met November 6th and after much 
discussion adopted a constitution somewhat like that of the United States. 
In March, 1901, Congress authorized the President to withdraw our 
forces from the island as soon as there should be established a gov¬ 
ernment under a constitution which should give the United States the 
right to intervene for the preservation of the independence and stable 
government of Cuba, and should provide for the selling or leasing of lands 
for coaling or naval stations to the United States, and should contain cer¬ 
tain other provisions. In June the Cuban Convention accepted these 
conditions. Then, elections having been duly held under the Cuban 
Constitution, the government of the island was formally handed over to 
the Cuban officers, May 20, 1902. 

In 1906 the president of Cuba invited our intervention because of a 
threatened revolution. A provisional governor appointed by President 
Roosevelt, and supported by United States troops, administered the 
Cuban government till peace and order were restored. In January, 1909, 
the island was again turned over to newly elected Cuban officers. 


CH A PTER VII. 


Practical Operation of the Constitution. 

In' this chapter will be given some account of the workings 
of the government under the Constitution. The more impor¬ 
tant offices in the different departments will be mentioned, 
with the duties, etc., of the various officers. 

THE LEGISLATIVE DEPARTMENT.. 

The Constitution provides, as has been seen, for a Congress, 
composed of a Senate and a House of Representatives. The 
senators and representatives are elected by the people. The 
senators hold office for six years and the representatives for 
two years. The members of the two houses receive the same 
compensation, $7,500 a year, with mileage at the rate of 
twenty cents a mile (ten cents each way), estimated by the 
nearest route usually traveled in going to and returning 
from each regular session. 

THE SENATE. 

The Vice President of the United States is the president of 
the Senate. He gives the casting vote when the Senate is 
equally divided, and signs all bills and resolutions that are 
passed by the Senate. His salary was originally $5,000. In 
1853 it was raised to $8,000, in 1873 to $10,000, in 1874 re¬ 
duced to $8,000, and in 1907 raised to $12,000. 

The list of Vice Presidents will be found in the Appendix. 

There is no provision in the Constitution or by statute 
A. C.—21 321 


322 


THE LEGISLATIVE DEPARTMENT 


for filling a vacancy in the office of Vice President. When 
the Vice President becomes President, the Senate chooses a 
president pro tempore , but this does not constitute him Vice 
President. 


THE HOUSE OF REPRESENTATIVES. 

The presiding officer of the House of Representatives, called 
the speaker, is chosen by the House. The term had its origin 
when legislative bodies were addressed by the chief executive, 
and their presiding officer was expected to respond. As he 
spoke for the body he was called the speaker. He signs all 
bills and joint resolutions passed by the House, decides ques¬ 
tions of order, and under the rules of the House appoints some 
temporary committees. He is required to vote in case of 
ballot, and he may vote on other occasions. His salary is 
$12,000. For list of speakers, see Appendix 


PRACTICAL LEGISLATION. 

In each house there are standing committees, to which are 
referred the various matters of business for examination and 
report. The members of each committee—from three to 
twenty-one in number—are chosen by ballot, although before 
1911 the House committees were appointed by the speaker. 

The Senate has about seventy standing committees and 
the House about fifty-five, and there are besides a number of 
select committees and joint committees. The principal com¬ 
mittees are those on Ways and Means, Appropriations, Judi¬ 
ciary, Foreign Affairs, Elections, Banking and Currency, 
Coinage, Interstate and Foreign Commerce, Railways and 
Canals, Claims, Public Lands, Insular Affairs, District of 
Columbia, Indian Affairs, Education, Immigration and Natu¬ 
ralization, Agriculture, Manufactures, Labor, Mines and Mining, 


PRACTICAL LEGISLATION 


323 


Pensions, Patents, Rivers and Harbors, Public Buildings and 
Grounds, and the committees on the several Executive Depart¬ 
ments. Not all of these committees, however, exist in both 
houses under the same name. As “all bills for raising 
revenue” must originate in the House, the Senate has no 
Committee on Ways and Means. This committee is regarded 
as the most important in the House, and the place of chair¬ 
man is held to be next to that of speaker in honor. 

The House often resolves itself into a Committee of the 
Whole , when the speaker leaves the chair and a chairman is 
appointed. This gives opportunity for free discussion with¬ 
out the restraint of the strict rules of the House. When this 
committee closes its session, in technical terms rises, the 
speaker resumes the chair, and the chairman of the commit¬ 
tee reports its proceedings. 

A bill introduced into either house is supposed to be read 
three times, and at each reading to be formally acted upon by 
the house. But in practice the first reading is by the title 
only, and also the third, if no objection is made. In the 
House of Representatives the bill is referred to the appropri¬ 
ate committee, and ordered to be printed, before the first 
reading ; but in the Senate the reference to the committee is 
made after the second reading. When a bill has been re¬ 
ported from the committee, after the second reading, it is 
ordered to be engrossed and read the third time, when the 
vote is taken upon its passage. Before this, however, the 
bill may be amended in various ways. Having passed both 
houses, the bill is enrolled on parchment, and carefully ex¬ 
amined by the Committee on Enrolled Bills. After the bill 
has been reported by this committee it is signed by the 
speaker of the House and the president of the Senate, and 
sent to the President of the United States for his signature. 

When a bill has been passed over the veto of the President 
by the requisite majority in each house, the published stat¬ 
utes give certificates to that effect, signed by the clerk of 


324 


THE EXECUTIVE DEPARTMENT 


the House of Representatives and the secretary of the Senate, 
in addition to the official signatures of the speaker of the 
House and the president of the Senate. 

If a bill has been presented to the President for his approval 
and not returned by him within the time prescribed by the 
Constitution, a note to that effect is appended by the Depart¬ 
ment of State. 

A bill passed in the usual way and approved by the Presi¬ 
dent, has the word “ Approved ” and the date appended. 


THE EXECUTIVE DEPARTMENT. 

The executive power is vested in a single officer, styled the 
President of the United States. We have seen that he must 
be thirty-five years of age, a native-born citizen, and a resi¬ 
dent for fourteen years in the United States. He is elected 
for a period of four years by electors chosen by the people 
in the several States. His term commences on the 4th of 
March. The salary, which can not be increased or dimin¬ 
ished during the period for which he shall have been elected, 
was $25,000 a year till the 4th of March, 1873, when Congress 
raised it to $50,000. In 1909 it was made $75,000. 

The President may be reelected, and ten have been elected 
for a second term. 

The following is a list of the Presidents : 

George Washington, of Virginia, was unanimously elected 
the first President. Though the term properly began on the 
4th of March, 1789, he was not sworn into office until the 
30th of April. He was reelected unanimously, and thus held 
the office eight years, till March 4th, 1797. 

John Adams, of Massachusetts, was elected, in 1796, over 
Thomas Jefferson, of Virginia; his term expired March 4th, 
1801. 

Thomas Jefferson, of Virginia, was elected by the House 


THE PRESIDENTS 


325 


of Representatives. John Adams was the opposing candidate 
before the people, but in the House the friends of Mr. 
Adams voted for Aaron Burr. Mr. Jefferson was elected on 
the thirty-sixth ballot, and Mr. Burr became Vice President. 
Mr. Jefferson was elected for a second term, his competitor 
being Charles C. Pinckney, of South Carolina. Mr. Jefferson 
was President from 1801 to 1809. (See page 173.) 

James Madison, of Virginia, was elected over C. C. Pinck¬ 
ney in 1808, and again, in 1812, over De Witt Clinton, of 
New York, his term ending March 4th, 1817. 

James Monroe, also of Virginia, was elected, in 1816, over 
Rufus King, of New York, and reelected, in 1820, almost 
unanimously. He served till March 4th, 1825. 

John Quincy Adams, of Massachusetts, was elected by the 
House of Representatives in February, 1825. The electoral 
votes were given to Andrew Jackson, J. Q. Adams, W. H. 
Crawford, and Henry Clay. The House, from the three 
highest candidates, chose Mr. Adams, who received the votes 
of thirteen States; seven voting for Mr. Jackson, and four 
for Mr. Crawford. Mr. Adams served the full term from 
March 4th, 1825, to March 4th, 1829. 

Andrew Jackson, of Tennessee, was elected, in 1828, over 
Mr. Adams, and again, in 1832, over Henry Clay, of Ken¬ 
tucky, and others. He held the office for eight years, to 
March 4th, 1837. 

Martin Van Buren, of New York, was the successful can¬ 
didate, in 1836, over William Henry Harrison, of Ohio, and 
others. His term ended March 4th, 1841. 

William Henry Harrison was elected, in 1840, over Mr. 
Van Buren. He entered upon his duties March 4th, 1841, 
and died April 4th of the same year. John Tyler, of Vir¬ 
ginia, the Vice President, thus became President. He took 
the oath of office April 6th, and served the remainder of the 
term to March 4th, 1845. 

James K. Polk, of Tennessee, was elected, in 1844, over 


326 


THE EXECUTIVE DEPARTMENT 


Henry Clay, and served four years, to March 5th, 1849. 
(March 4th, in 1849, was Sunday.) 

Zachary Taylor, of Louisiana, was elected over Lewis Cass, 
of Michigan, in 1848. He entered upon his duties March 
5th, 1849, and died July 9th, 1850. Millard Fillmore, of 
New York, the Vice President, took the oath of office July 
10th, and served till March 4th, 1853. 

Franklin Pierce, of New Hampshire, was elected, in 1852, 
over Winfield Scott, and held the office one term, from 
March 4th, 1853, to March 4th, 1857. 

James Buchanan, of Pennsylvania, was elected, in 1856, 
over John C. Fremont, of California, and Millard Fillmore. 
He served one term, to March 4th, 1861. 

. Abraham Lincoln, of Illinois, was elected, in 1860, over 
John C. Breckenridge, Stephen A. Douglas, and John Bell. 
In 1864 he was reelected over George B. McClellan, but he 
died April 15th, 1865. Andrew Johnson, of Tennessee, the 
Vice President, was sworn in as President April 15th, and 
served the remainder of the term, to March 4th, 1869. 

Ulysses S. Grant, of Illinois, was elected, in 1868, over 
Horatio Seymour, of New York, and reelected in 1872. His 
competitor in 1872, Horace Greeley, of New York, died No¬ 
vember 29th. President Grant's second term expired March 
5th, 1877. 

Rutherford B. Hayes, of Ohio, was elected, in 1876, over 
Samuel J. Tilden, of New York. He served till March 4th, 
1881. 

James A. Garfield, of Ohio, was elected, in 1880, over Win¬ 
field S. Hancock, of Pennsylvania. He died September 19th, 
1881, and Chester A. Arthur, of New York, the Vice Presi¬ 
dent, took the oath of office September 20th, and served till 
March 4th, 1885. 

Grover Cleveland, of New York, was elected, in 1884, over 
James G. Blaine, of Maine. He served from March 4th, 
1885, to March 4th, 1889. 


THE EXECUTIVE DEPARTMENTS 


327 


Benjamin Harrison, of Indiana, was elected, in 1888, 1 over 
Grover Cleveland. He served one term, to March 4th, 1893. 

Grover Cleveland, of New York, was elected for the second 
time, in 1892, 1 over Benjamin Harrison, of Indiana, and James 
B. Weaver, of Iowa. He served till March 4th, 1897. 

William McKinley, of Ohio, was elected, in 1896, 1 and 
reelected in 1900, 1 'over William J. Bryan, of Nebraska. He 
died September 14th, 1901, and Theodore Roosevelt, of New 
York, the Vice President, was then sworn in as President. 

Theodore Roosevelt was elected, in 1904, 1 over Alton B. 
Parker, of New York. He served till March 4th, 1909. 

William H. Taft, of Ohio, was elected, in 1908, 1 over 
William J. Bryan. He served till March 4th, 1913. 

Woodrow Wilson, of New Jersey, was elected, in 1912, 1 over 
Theodore Roosevelt and William H. Taft. 


THE EXECUTIVE DEPARTMENTS. 

The Constitution contemplates “ heads of departments.” 
The departments are not defined in the Constitution, but 
have been established by law. There are now ten of these, 
viz., The Departments of State, of the Treasury, of War, of 
Justice, of the Post Office, of the Navy, of the Interior, of 
Agriculture, of Commerce, of Labor. The heads of the de¬ 
partments are known collectively as “ the Cabinet,” and with 
two exceptions are called Secretaries. The head of the Post 
Office Department is called the Postmaster-General, and the 
head of the Department of Justice is the Attorney-General. 
The salary of each head of a department is $12,000. The 
departments are subdivided into subordinate departments 
known as bureaus. 

1 The years 18SS, 1892, etc., are the dates of the election of the electors. The votes of 
the electors were cast in 1889, 1893, etc. Previous to 1888 the electors cast their votes on 
the first Wednesday in December; but since then on the second Monday in January 
following their election (see page 177). 


328 


THE EXECUTIVE DEPARTMENT 


THE DEPARTMENT OF STATE. 

In January, 1781, prior to the adoption of the Constitu¬ 
tion, Congress had established the Department of Foreign 
Affairs, to be under the direction of an officer styled “ Sec¬ 
retary for the Department of Foreign Affairs.” R. R. Liv¬ 
ingston was the first Secretary. In July, 1789, an executive 
department was established under the same designation, 
which in September was changed to that of the Department 
of State. 

The office of the Secretary of State is usually regarded as 
next in importance to that of the President. The duties of 
the office are not very clearly defined by law, but are largely 
such as come from the instructions of the President. The 
Secretary is to “perform such duties as shall from time to 
time be enjoined on or intrusted to him by the President, 
relative to correspondences, commissions, or instructions to 
or with public ministers or consuls from the United States.” 

He preserves the originals of all treaties, public documents, 
laws, and correspondence with foreign powers. He keeps 
the seal of the United States, and affixes it to all commissions 
which are signed by the President. He authenticates all 
proclamations of the President. He furnishes copies of 
records and papers in his office, authenticated under the seal 
of the department. 

He has charge of foreign relations, and conducts the corre¬ 
spondence with foreign ministers, and with our ministers and 
consuls. He is the organ of communication of the President 
with the governors of the several States. 

He issues passports to citizens wishing to visit foreign coun¬ 
tries. He issues warrants for the extradition of criminals 
who are to be delivered up to foreign governments in accord¬ 
ance with treaty stipulations. He presents to the President 
all foreign ministers. 


THE DEPARTMENT OF STATE 


329 


The salary of the Secretary of State is now $12,000 a year. In 1789 it 
was established at $3,500. In 1799 it was made $5,000; in 1819, $6,000; 
in 1853, $8,000; in 1873, $10,000; in 1874, $8,000; and in 1907, $12,000. 

For list of Secretaries of State, see Appendix. 

In 1853 an Assistant Secretary was authorized ; in 1866, a 
second; and in 1874, a third. The routine work of the 
State Department is carried on by a number of bureaus. 

Ambassadors and Other Public Ministers.—All persons 
who are sent abroad to represent our government are con¬ 
nected with the Department of State. These representatives 
are of different grades, though it is not easy to draw the lines 
that distinguish them. They include the following : Ambas¬ 
sador, Envoy Extraordinary and Minister Plenipotentiary, 
Minister Resident, and Charge d’Affaires. In most of the 
embassies or legations there are also one or more secretaries, 
and perhaps an interpreter. Until 1893 our government 
never designated any of its ministers as Ambassadors ; but in 
that year an act was passed authorizing the President to give 
to our ministers in any country such of the above titles as that 
country gives its ministers in the United States. 

Ambassadors are now sent to ten or more of the most im¬ 
portant governments, such as Great Britain, Russia, Ger¬ 
man Empire, France, Mexico, and Japan. They receive 
$17,500 per annum. 

Envoys Extraordinary and Ministers Plenipotentiary are 
sent to some thirty governments, but in a few cases there is 
only one such minister for two or three different countries. 
Their salaries are $10,000 or $12,000. 

Ministers Resident are inferior in rank to the Envoy Ex¬ 
traordinary and Minister Plenipotentiary. Their duties, how¬ 
ever, are the same. The difference is principally in the rela¬ 
tive importance of the governments to which they are sent. 
Their salaries range from $5,000 to $10,000. There are only 
a few of them. 


330 


THE EXECUTIVE DEPARTMENT 


The term Commissioner has sometimes been applied by our govern¬ 
ment to diplomatic representatives. Commissioners were formerly sent 
to China, Mexico, and other places. At present no regular diplomatic 
officer is styled a Commissioner. The title is often applied to those sent 
on special service, as in the case of the Commissioners who helped to 
frame the Treaty of Washington. 

Charges d'Affaires are rarely sent at present. The rank is below that 
of the Minister Resident. The term would imply a kind of minister ad 
interim , rather than a permanent officer. Formerly, however, a majority 
of our diplomatic representatives were styled Charges d’Affaires. Thus, 
in 1849, there were eight Ministers Plenipotentiary, one Minister Resident 
(to Turkey), and sixteen Charges d’Affaires. 

The Secretary of Legation is the secretary, or clerk, to a 
foreign embassy. In the most important embassies there are 
two or even three Secretaries of Legation. Sometimes, 
through the death or removal of the minister, his duties are 
devolved temporarily on the (first) Secretary of Legation. 

Consuls are commercial rather than diplomatic agents. 
Their principal duty is to watch over the interests of our 
commerce in the cities of the different countries, and to pro¬ 
tect the rights of seamen. 

In execution of this general duty, they hold the ship’s papers of all 
American vessels while in port; they hear complaints of seamen; they 
reclaim deserters; they appoint examiners for vessels reported unsea¬ 
worthy ; they cause mutinous sailors to be arrested and sent home for 
trial; they extend relief to destitute seamen; they take possession of the 
personal property of American citizens dying abroad; they take measures 
for the saving of stranded vessels and their cargoes; they report the con¬ 
dition of business in their respective localities, etc. 

The United States has about sixty Consuls-General, some 
of whom are also Ministers Resident. There are also about 
two hundred and forty Consuls and many Consular Agents. 
Until the year 1855 these officers were compensated by fees. 
In that year the diplomatic and consular systems were re¬ 
modeled, and salaries were paid in all the more important 
ports. In 1906 the consular service was again improved, 
and all Consuls and Consuls-General now receive salaries. 


THE TREASURY DEPARTMENT 


331 


Fees are collected, but they are accounted for to the govern¬ 
ment. The salaries vary from $2,000 to $12,000 per annum. 
Some Consular Agents are paid by fees. 

THE TREASURY DEPARTMENT. 

A Treasury Department was established by the Continental 
.Congress early in 1781, the chief officer being styled the Su¬ 
perintendent of Finance. Robert Morris was the first Super¬ 
intendent. 

The present department was established in 1789. Its head 
is the Secretary of the Treasury. The original act provided 
also for a Comptroller, an Auditor, a Treasurer, a Register, 
and an Assistant to the Secretary. 

It is the duty of the Secretary to digest and prepare plans 
for the improvement and management of the revenue, and for 
the support of public credit; to superintend the collection of 
the revenue ; to decide on the forms of keeping accounts and 
making returns; to grant, under certain limitations, all war¬ 
rants for money to be issued from the treasury in pursuance 
of appropriations by law ; and, generally, to perform all such 
services relative to the finances as shall be required. He also 
has control of certain branches of the public service not di¬ 
rectly connected with the finances. 

The power and influence of this department have increased 
with the growth of the country in wealth and population, and 
have been still more enhanced by the great increase of the 
national debt, the establishment of the system of internal 
revenue, the issue of a legal tender paper currency, and the 
establishment of the national banking system. 

The salary of the Secretary of the Treasury has been the same as that of 
the Secretary of State : in 1789, $3,500; in 1799, $5,000; in 1819, $6,000; 
in 1853, $8,000; in 1873, $10,000; in 1874, $8,000; in 1907, $12,000. 

For a list of Secretaries, see Appendix. 

There are three Assistant Secretaries. 


332 


THE EXECUTIVE DEPARTMENT 


Bureaus in the Treasury Department.—The work in this 
department is performed, under the general supervision of the 
Secretary of the Treasury and his Assistants, by various of¬ 
ficers, distributed in bureaus as follows : offices of the Comp¬ 
troller, each of the six Auditors, Treasurer, Register, Comp¬ 
troller of the Currency, Commissioner of Internal Revenue, 
the Mint, Bureau of Engraving and Printing, Public Health 
Service, etc. 

The office of Comptroller was created in 1789 ; in 1817 a 
Second Comptroller was provided for, but in 1894 this officer 
was replaced by an Assistant Comptroller. The Comptroller 
decides appeals from the settlements made by the Auditors; 
revises the decisions of the Auditors as to the construction of 
statutes ; superintends the recovery of debts due to the United 
States ; preserves the accounts that are finally adjusted, to¬ 
gether with their vouchers and certificates ; and countersigns 
all warrants drawn by the Secretary of the Treasury. Hav¬ 
ing the final adjudication of accounts involving vast sums of 
money, the Comptroller holds a most responsible office, re¬ 
quiring great capacity as well as the strictest integrity. 

The Auditors .—The act of 1789, establishing a Treasury 
Department, provided for a single Auditor, who was to receive 
all public accounts, to certify the balance, and transmit the 
accounts, with the vouchers and certificates, to the Comp¬ 
troller for his decision. In 1817 four additional Auditors 
were authorized, and the work was divided among them. In 
1836 a Sixth Auditor was added. By act of 1894 the desig¬ 
nations of the Auditors were changed and their duties were 
altered. 

The First Auditor is called Auditor for the Treasury Department He 
examines all accounts of salaries and expenses of the office of the Secre¬ 
tary of the Treasury and all bureaus under his direction ; he keeps all 
accounts relating to the customs service, the internal revenue, the public 
debt, etc. 

The Second Auditor is called Auditor for the War Department. He ex- 


THE TREASURY DEPARTMENT 


333 


amines the accounts of that department, including all its bureaus and 
offices. 

The Third Auditor is called Auditor for the Interior Department. He 
examines and settles all claims and accounts arising in the Department of 
the Interior ; these include among others the pension accounts. 

The Fourth Auditor is called Auditor for the Navy Department, and 
audits all accounts relating to that department. 

The Fifth Auditor is called Auditor for the State and other Departments. 
He examines the accounts of the Secretary of State, the Attorney-General, 
the Secretary of Agriculture, the Secretary of Commerce, and the Secre¬ 
tary of Labor, and of all bureaus under their direction ; of the diplomatic 
and consular service, of the judiciary, of the executive office, of the Court 
of Claims, of the Smithsonian Institution, of the territorial governments, 
of the Senate and House of Representatives, of the Public Printer, 
Library of Congress, Botanic Garden, and of all bureaus and commissions 
not within the jurisdiction of any department. 

The Sixth Auditor is called Auditor for the Post Office Department, and 
audits all accounts pertaining to that department. He superintends the 
collection of debts and penalties due to the United States on account of 
the postal service, and is the custodian of all contracts of the Post Office 
Department. 

The office of Treasurer was created in 1789. It is the 
Treasurer’s duty to receive and keep the moneys of the 
United States, and to disburse the same upon warrants drawn 
by the Secretary of the Treasury, countersigned by the Comp¬ 
troller and recorded by the Kegister. In 1846 certain rooms 
and vaults in the new Treasury buildings were appropriated 
to the use of the Treasurer ; these, with other apartments pro¬ 
vided as places of deposit of the public money, were con¬ 
stituted “the Treasury of the United States.” Provision 
was made for the appointment of four Assistant Treasurers— 
at New York, Boston, Charleston, and St. Louis—and the 
treasurers of the mints at Philadelphia and New Orleans were 
also to act as such. In 1916 there were Assistant Treasurers 
at New York, Boston, St. Louis, Philadelphia, New Orleans, 
Baltimore, Cincinnati, Chicago, and San Francisco. When 
the national banks were established, in 1863, the Secretary of 


334 


THE EXECUTIVE DEPARTMENT 


the Treasury was authorized to designate them as depositories 
of public moneys, except receipts from customs, and they 
could be employed as financial agents of the government. 

The signature of the Treasurer is on all the treasury notes 
and gold and silver certificates issued by the United States, 
and was on all the postal and fractional currency while issued. 

The office of Register was created in 1789, but the duties 
of the office were much altered in 1894. The Register signs 
all stocks and bonds of the United States, and superintends 
their issue. He signs all treasury notes and gold and silver 
certificates. He receives, examines, and registers all redeemed 
notes and securities of the United States. 

In 1863 a separate bureau was established in the Treasury 
Department, called the Bureau of Currency , to be under the 
direction of an officer denominated the Comptroller of the Cur¬ 
rency . The act establishing this bureau was the “ Act to pro¬ 
vide a national currency, secured by a pledge of United States 
bonds, and to provide for the circulation and redemption 
thereof,” passed February 25th, 1863, and subsequently super¬ 
seded by an act for the same purpose, passed June 3d, 1864. 

It is the duty of the Comptroller of the Currency to see 
that all banking associations established under this act are or¬ 
ganized and managed according to law; to provide the banks 
with notes for circulation; to send agents to examine into their 
condition; to close up the affairs of such as fail to pay their 
notes; to report annually to Congress their condition, etc. 
He is also ex-officio member of the Federal Reserve Board. 

In 1914 there were more than 7,000 national banks in opera¬ 
tion in the United States. The capital stock of all was over 
$1,000,000,000, and the bank notes in circulation exceeded 
$680,000,000. There are twelve Federal Reserve Banks. 

Bureau of Internal Revenue .—The act establishing this 
bureau, the head of which is styled Commissioner of Internal 
Revenue , was passed in 1862. A similar office was created in 
1813, and abolished in 1817. The duties of the office are the 


THE TREASURY DEPARTMENT 


335 


collection of internal revenue and the enforcement of the in¬ 
ternal revenue laws. The act of 18G2 provided for the ap¬ 
pointment of an assessor and a collector in each collection dis¬ 
trict, and for twenty-five supervisors. The office of assessor 
ceased July 1st, 1873, and the duties were devolved on the 
collectors. 

In the collection of customs many persons are employed in 
connection with the different customhouses. The chief officer 
is the collector. The naval officer and the surveyor have im¬ 
portant duties, which are not very clearly indicated by their 
names. They are appointed only in the larger ports. From 
1849 to 1894 there was at Washington a Commissioner of Cus¬ 
toms who had certain duties in connection with the accounts 
of collectors and other officers ; but in 1894 this office was 
abolished and the duties were transferred to the Comptroller's 
office. 

By act of February 12th, 1873, the Mint of the United 
States was established as a bureau of the Treasury Depart¬ 
ment, the chief officer to be styled the Director of the Mint. 
He is charged with the general supervision of all mints and 
assay offices. There are mints at Philadelphia, San Francisco, 
Carson, New Orleans, and Denver. Assay offices are stations 
for the deposit of ore, where it is assayed and paid for, and 
melted into bars, but not coined. 

The Bureau of Engraving and Printing was established in 
1874. It designs, engraves, and prints postage stamps, the 
internal revenue stamps, the national bank notes, the notes, 
bonds, and securities of the United States, treasury drafts and 
checks, etc. 

The Supervising Architect has the general charge of planning and con¬ 
structing all United States buildings, as customhouses, courthouses, post 
offices, marine hospitals, mints, etc. 

The Surgeon-General of the Public Health Service superintends 
the operation of the marine hospitals, and has charge of the quarantine 
service. 


336 


THE EXECUTIVE DEPARTMENT 


THE WAR DEPARTMENT. 

The office of Secretary of War was created in 1789. Such 
a department existed before the adoption of the Constitution, 
Benjamin Lincoln having been appointed Secretary of War 
and Marine in February, 1781; and “an ordinance for ascer¬ 
taining the powers and duties of the Secretary of War ” was 
passed by the Continental Congress in January, 1785. Up to 
1798 these duties extended to naval as well as to military 
affairs. An Assistant Secretary of War was authorized March 
5th, 1890. 

The salary of the Secretary of War was for thirty years $500 less than 
that of the Secretaries of State and the Treasury. It was $3,000 in 1789, 
$4,500 in 1799, $6,000 in 1819, $8,000 in 1853, $10,000 in 1873, $8,000 in 
1874, and $12,000 in 1907. 

For list of Secretaries, see Appendix. 

The War Department controls the Army. The make-up of 
the line of the army is given on page 137; the staff consists 
of a General Staff Corps, under the Chief of Staff, and of the 
following bureaus, which will be understood from their titles: 
Office of the Adjutant General, Office of the Inspector Gen¬ 
eral, Office of the Judge-Advocate General, Office of the 
Quartermaster General, Office of the Surgeon General, Office 
of the Chief of Engineers, Office of the Chief of Ordnance, 
Office of the Chief Signal Officer, Bureau of Insular Affairs, 
Board of Engineers for Fivers and Harbors. The heads of 
these bureaus, as a rule, have the rank of brigadier general. 

The Military Academy at West Point, in the State of New 
York, is connected with the War Department. It was estab¬ 
lished in 1802. At first, provision was made for only ten 
cadets, but in 1812 Congress authorized the number to be 
increased to two hundred and fifty. The present corps of 
cadets consists of two from each congressional district, two 


THE WAR DEPARTMENT 


337 


from each Territory, four from the District of Columbia, two 
from the natives of Porto Rico, four from each State at large, 
eighty from the United States at large, and a certain number 
of enlisted men each year; these are all appointed by the Presi¬ 
dent. 1 They must be between the ages of seventeen and twenty- 
two. The course of instruction lasts four years. Upon gradu¬ 
ating the cadets are commissioned as second lieutenants in the 
army. 

The superintendent and most of the instructors are officers 
of the army. The Academy is wholly supported by the gov¬ 
ernment, an allowance being made to each cadet sufficient to 
pay his entire expenses of clothing, board, etc. 

Salaries.— The army officers receive yearly pay as follows: 


Lieutenant General.$11,000 

Major General. 8,000 

Brigadier General. 6,000 

Colonel. 4,000 

Lieutenant Colonel. 3,500 

Major. 3,000 

Captain, mounted. 2,550 


Captain, not mounted.$2,400 

1st Lieut., mounted . 2,150 

1st Lieut., not mounted .... 2,000 

2d Lieut., mounted. 1,850 

2d Lieut., not mounted. 1,700 

Chaplain. 2,000 


To each commissioned officer below the rank of brigadier 
general the pay is increased ten per centum for every term of 
five years’ service, but the increase is not to exceed forty per 
centum. 2 Officers retired from service receive seventy-five 
per centum of the pay (salary and increase) of the rank upon 
which they are retired. By a law of 1882 all officers are re¬ 
tired at the age of sixty-four. The pay of privates is fifteen 
dollars a month, for the first enlistment period of three years, 


1 So the statute requires. Practically each congressman makes recommendations to the 
Secretary of War, and this officer nominates to the President. Of late years the selection 
is frequently made by competitive examination, and with good results. 

2 The maximum pay of colonels, lieutenant colonels and majors is still further limited— 
that of colonel to $5,000, that of lieutenant colonel to $4,500, and that of majors to 
$4,000. 














338 


THE EXECUTIVE DEPARTMENT 


with three dollars a month added for the second enlistment, 
three more for the third, if reenlisted within three months, and 
one more for the fourth, fifth, sixth, and seventh enlistments, 
if reenlisted within three months. An enlisted man who has 
served thirty years as a private or non-commissioned officer may 
be retired on three fourths pay. The officers are paid monthly. 

THE DEPARTMENT OF JUSTICE. 

This department was created by act of Congress, June 22d, 
1870. The Attorney-General is the head of it. While the 
Department of Justice was not established till 1870, the office 
of Attorney-General was created in 1789 ; and this officer, 
though without a “ department,” has always been recognized 
as a member of the Cabinet. 

The act of September 24th, 1789, made it his duty to pros¬ 
ecute and conduct all suits in the Supreme Court in which 
the United States should be concerned, and to give his ad¬ 
vice and opinion upon questions of law when required by the 
President, or when requested by the heads of any of the de¬ 
partments touching any matters concerning their depart¬ 
ments. 

In 1861 he was charged with the general superintendence 
of the attorneys and marshals of all the judicial districts in 
the United States and the Territories. He was also author¬ 
ized to employ counsel to aid district attorneys in the dis¬ 
charge of their duties. He examines the title of lands which 
the government proposes to purchase for forts, dockyards, 
customhouses, or other public purposes. 

Though the Attorney-General had a seat in the Cabinet from the first, 
his salary was much below the others. It was fixed, in 1789, at $1,500, 
and not till 1850 was it made equal to that of the other members of the 
Cabinet—$6,000. In 1853 it was made $8,000; in 1873, $10,000; in 
1874, $8,000; and in 1907, $12,000. 

For list of Attorneys-General, see Appendix. 


THE DEPARTMENT OP JUSTICE 339 

In 1868 two Assistant Attorneys-General were provided for, to be ap¬ 
pointed by the President. The act of 1870 continued these offices, but 
created the office of Solicitor-General, who ranks next to the Attorney- 
General. The act also transferred to the Department of Justice the So¬ 
licitor of the Treasury and his assistants, and the Solicitor of Internal 
Revenue from the Treasury Department, the Naval Solicitor from that of 
the Navy, and the Examiner of Claims from the Department of State. 
All these officers were to be appointed by the President and Senate. 
Since then a number of changes and additions have been made, and now 
the officers are as shown in the table below. 

The Attorney-General makes an annual report to Congress 
of the business of his department, and any other matters ap¬ 
pertaining thereto that he may deem proper, including the 
statistics of crime under the laws of the United States, and, 
as far as practicable, under the laws of the several States. 
The officers of this department give legal advice to the Presi¬ 
dent and the officers of the executive department. The Secre¬ 
taries of the various departments are not to employ counsel 
at the public expense, but to call upon the Department of 
Justice at all times. 

The Department of Justice, which is one of the executive 
departments, must not be. confounded with the judicial de¬ 
partment, which is one of the three great divisions of the 
government and coordinate with the executive department. 

The following are the principal officers in the Department of Justice : 


Attorney-General..}.Salary $12,000 

Solicitor-General. 10,000 

Assistant to the Attorney-General. 9,000 

Six Assistant Attorneys-General, each. 7,500 

Solicitor for the Post Office Department. 5,000 

Solicitor for the Department of the Interior. 5,000 

Solicitor of Internal Revenue. 6,000 

Solicitor for the Department of State. 5,000 

Solicitor of the Treasury. 5,000 

Solicitor of the Department of Commerce. . 6,000 

Solicitor of the Department of Labor. 6,000 













340 


THE EXECUTIVE DEPARTMENT 


POST OFFICE DEPARTMENT. 

There were arrangements for carrying letters by mail be¬ 
fore the colonies separated from the mother country. Dr. 
Benjamin Franklin had the general superintendence under 
the British government, and in July, 1775, he was appointed 
by the Second Continental Congress “ Postmaster-General 
of the United Colonies.” When the Constitution went into 
operation. Congress, by act of September 22d, 1789, provided 
for the “ temporary establishment of the Post Office,” the 
regulations to be “ the same as they last were under the res¬ 
olutions and ordinances of the late Congress.” 

In 1792 an act was passed to establish a General Post Office. 
There was to be a Postmaster - General, who should have 
power to appoint an Assistant, and deputy postmasters at all 
places where such should be found necessary ; he was also 
“to superintend the business of the department” in all the 
duties that should be assigned to it. This act was, indeed, 
limited to two years, but in 1794 a similar one was enacted, 
which had no limitation of time. We may say, therefore, 
that the Post Office Department has been in operation from 
the first Congress under the Constitution. 1 An act to revise, 
consolidate, and amend the statutes relating to the Post Of¬ 
fice Department, containing three hundred and twenty-seven 
sections, was passed June 8th, 1872 ; and many laws relating 
to the postal service have been passed since then. 

The salary of the Postmaster-General was $2,000 in 1792, $3,000 in 
1799, $4,000 in 1819, $6,000 in 1827, $8,000 in 1853, $10,000 in 1873, 
$8,000 in 1874, and $12,000 in 1907. 

1 Mr. Gillet, in his work on The Federal Government , says: “ There has never been 
any statute establishing a Post Office Department . . . It is first spoken of as a Post 
Office Department in the title of an act in 1825.’’ But that title itself is, “ An Act to re¬ 
duce into one the several acts establishing and regulating the Post Office Department.” 
This very title thus asserts that previous acts had established such a department. We 
have seen above that the General Post Office was called a “ department ” in the act of 
1792. An act of March 3d, 1801, speaks “ of the several departments of the Treasury, 
of War, of the Navy, and of the General Post Office.” 


THE POST OFFICE DEPARTMENT 


341 


It is said that the Postmaster-General did not attend the 
meetings of the Cabinet prior to the administration of Presi¬ 
dent Jackson, who invited Mr. Barry to be present at their 
meetings. The practice has been continued ever since that 
time. 

For the list of Postmasters-General, see Appendix. 

There are four Assistant Postmasters-General. The Post¬ 
master-General appointed assistants until 1853; since then 
the appointment has been by the President and Senate. 

The First Assista?it Postmaster-General has general charge 
of post offices and postmasters and their appointment and in¬ 
struction ; the adjustment of salaries of postmasters; the city 
free delivery system; and the treatment of undelivered mail 
matter (dead letters). 

The Second Assistant Postmaster-General has charge of the 
transportation of all mails. 

The Third Assistant Postmaster-General has charge of the 
finances of the department; provides stamps, stamped enve¬ 
lopes, and postal cards; supervises the money order system 
and the registered letter system; controls the business relating 
to rates of postage and classification of mail matter; and super¬ 
vises the Postal Savings system. 

The Fourth Assistant Postmaster-General has charge of the 
rural free delivery system; supplies postmasters with blanks, 
stationery, etc.; and has charge of the making of post-route 
maps. 

The office of each Assistant Postmaster-General is organized as 
follows: 

That of the First Assistant: (1) the Division of Postmasters’ Appoint¬ 
ments ; (2) the Division of Salaries and Allowances ; (3) the Division of 
City Delivery ; (4) the Division of Dead Letters. 

That of the Second Assistant: (1) the Division of Railway Mail Serv¬ 
ice; (2) the Division of Foreign Mails; (3) the Division of Railway 
Adjustments; (4) the Division of Miscellaneous Transportation. 

That of the Third Assistant: (1) the Division of Finance ; (2) the Di¬ 
vision of Stamps ; (3) the Division of Money Orders; (4) the Division of 


342 THE EXECUTIVE DEPARTMENT 

Registered Mails; (5) the Division of Classification ; (6) the Division of 
Postal Savings. 

That of the Fourth Assistant: (1) the Division of Rural Mails; 
(2) the Division of Equipment and Supplies. 


THE DEPARTMENT OF THE NAVY. 

This department was established by act of Congress, April 
30th, 1798, its chief officer being styled the Secretary of the 
Navy. 

In 1861 an Assistant Secretary was authorized, but the 
office expired March 4th, 1869. It was again authorized 
July 11th, 1890. 

For list of Secretaries, see Appendix. 

The salary of the Secretary of the Navy was at first $3,000. In 1799 
it was made $4,500 ; in 1819, $6,000 ; in 1853, $8,000; in 1873, $10,000; 
in 1874, $8,000 ; and in 1907, $12,000. 

Bureaus.—In accordance with an act of July 5th, 1862, 
there were established eight bureaus in the Navy Department, 
for each of which a chief was to be appointed from the list of 
the officers of the navy by the President. The names and 
duties of some of the bureaus have been altered by later acts, 
and in 1911 one of them (the Bureau of Equipment) was abol¬ 
ished. 

The Bureau of Yards and Docks. —Vessels are built and repaired at 
navy yards, of which the government has eight, viz., at Charlestown, 
Mass.; Brooklyn, N. Y. j 1 League Island, Pa.; Washington, D. C.; 
Norfolk, Va. ; Puget Sound, Wash. ; Mare Island, Cal.; and Charles¬ 
ton, S. C. Besides these, there are naval stations at Newport, R. I.; 
Key West, Fla. ; Pensacola, Fla. ; Port Royal, S. C. ; New Orleans, 
La. ; San Francisco, Cal.; and in our island possessions. This bureau 
has charge of the construction and maintenance of all docks, piers, 

1 The navy yard at Brooklyn is known as the New York navy yard; and the one at 
Charlestown is often spoken of as at Boston. Both names, Boston and Charlestown, are 
applied to the same navy yard in the same statute—U. S. Statutes at Large, XVII., page 552. 


THE DEPARTMENT OF THE NAVY 


343 


buildings, etc., within the navy yards, and controls the general adminis¬ 
tration of the navy yards. 

The Bureau of Navigation promulgates and enforces the Secretary’s 
orders to the fleets and officers of the navy ; controls the Naval Academy 
and other naval schools ; and has charge of the enlistment and discharge 
of sailors. It keeps a record of the services of all ships, officers, and 
men, and prepares and enforces all tactics, drill books, and signal codes. 
It has supervision of the Hydrographic Office, the Nautical Almanac, 
and the Naval Observatory. The observatory was established in 1842 
under the name of “Depot for Naval Charts and Instruments.” 

The Bureau of Ordnance .—To this bureau belongs the general charge 
of the manufacture and purchase of guns and ammunition of every kind, 
torpedoes, war explosives, etc. Under its direction experiments are made 
to test new species of ordnance and ammunition. It determines the arma¬ 
ment and distribution of armor for war vessels. 

The Bureau of Construction and Repair has charge of all that relates 
to planning, building, and repairing vessels, as distinct from their arma¬ 
ment and the engines and machinery by which they are propelled. 

The Bureau of Steam Engineering .—All that pertains to the steam 
machinery by which vessels are propelled and operated comes under the 
charge of this bureau. 

The Bureau of Medicine and Surgery has charge of the naval hospi¬ 
tals, laboratories, and dispensaries, and furnishes all medical supplies for 
the department. 

The Bureau of Supplies and Accounts provides clothing, provisions, 
and small stores for the navy. 

Besides these bureaus there is the office of the Judge-Advo¬ 
cate General , who revises and records the proceedings of 
courts-martial and is the legal adviser of the department; 
and the office of the Commandant of the Marine Corps. 

The Naval Academy, which sustains to the navy the same 
relation which the Military Academy at West Point does to 
the army, seems not to have been established by an act of 
Congress, but to have been commenced by the Navy Depart¬ 
ment without formal legislation. The first action of Con¬ 
gress regarding it is found in the act making appropriations 
for the naval service, August 10th, 1846. 1 This provides 

* non. George Bancroft was then Secretary of the Navy. 


344 


THE EXECUTIVE DEPARTMENT 


that of the money appropriated for “ pay of the navy ” and 
“ contingent expenses enumerated,” an amount not exceed¬ 
ing $28,200 may be expended under the direction of the 
Secretary of the Navy for repairs, improvements, and in¬ 
struction at Fort Severn, Annapolis, Md. In March, 1847, 
a like sum was appropriated for the same purposes, “ and 
for the purchase of land for the use of the naval school at 
that place, not exceeding twelve acres .” 

The students, who are called midshipmen, must be, when 
admitted, not under sixteen years of age nor over twenty. 
Each year there are appointed three midshipmen for each 
Senator, Representative, and Delegate in Congress, one from 
Porto Rico, who must be a native, two from the District of 
Columbia, ten at large, and fifteen from the enlisted men of 
the navy. 

The course embraces four years of study at the Academy. 
As soon as a midshipman finishes his course, the succeeding 
appointment may be made from his State or district or at large 
as the case may be. On graduation from the Academy the 
midshipmen are given commissions as ensigns in the Navy. 


Salaries.— The yearly pay of officers of the navy is as follows: 


On Sea Duty. 


Admiral.$14,850 

Rear Admiral (First nine). 8,800 

Rear Admiral (Second nine). 6,600 

Captain. 4,400 

Commander. 3,850 

Lieutenant Commander. 3,300 

Lieutenant. 2,640 

Lieutenant (Junior Grade). 2,200 

Ensign. 1,870 


On Shore Duty. 

$13,500 

8,000 

6,000 

4,000 

3,500 

3,000 

2,400 

2,000 

1,700 


In addition, ten per cent of salary is added, for every five 
years of service, to the pay of all officers below the rank of 
rear admiral. This addition is limited to forty per cent, and 
it is further provided that the pay (on shore duty) of captain 











THE DEPARTMENT OF THE INTERIOR 


345 


shall not exceed $5,000, of commander $4,500, and of lieutenant 
commander $4,000. 

The act of March 3d, 1899, provided for the retirement of 
a certain number of officers each year, with the rank and 
seventy-five per cent of the sea pay of the next higher 
grade. 

The pay of “seamen” in the navy is, for the first enlistment, 
$26.40 a month; of “ordinary*seamen,” $20.90; of “lands¬ 
men,” $17.60. Larger pay is given on reenlistments. 

The Marine Corps consists of officers and soldiers organized 
like the army, with a brigadier-general in command, but dis¬ 
tributed among the vessels of the navy and wholly under the 
control of the Navy Department. The pay of officers and 
men is the same as in the army. 

There are also under the control of the Navy Department a 
Medical Corps, a Pay Corps , many Naval Constructors, Civil 
Engineers , etc. 

THE DEPARTMENT OF THE INTERIOR. 

This department was established by act of Congress, March 
3d, 1849. The act is entitled “ An Act to establish the Home 
Department.” A department was proposed under that name 
in 1789. The duties of the department relate to various offices 
which have been transferred to it from other departments. It 
is less homogeneous, therefore, than the others. 

At its establishment the Patent Office and the Census Office 
were transferred to it from the Department of State ; the 
Land Office, including the charge of Mines, from the Depart¬ 
ment of the Treasury ; the charge of Indian affairs from the 
Department of War ; the charge of Pensions from the Depart¬ 
ments of War and the Navy; and the care of certain Public 
Buildings from the President. Subsequently it was charged 
with the duty of receiving and distributing certain public 
documents, and with certain duties relating to Territories, 


346 


THE EXECUTIVE DEPARTMENT 


which had been performed by the State Department. The 
“Department of Education,” which was at first independent, 
lias been made an office in this department. 

The salary has been the same as the other Secretaries have received, 
being now $12,000. There are two Assistant Secretaries. 

For list of Secretaries, see Appendix. 

The Patent Office is under the superintendence of a 
Commissioner, who is assisted by an Assistant Commissioner. 
There is a large corps of examiners and other employees in 
the Patent Office. Besides the charge of this large force, the 
Commissioner has a large amount of judicial work to per¬ 
form—in hearing and deciding cases relating to the issue of 
patents. 

The Bureau of Pensions.—Provision was early made for 
the payment of pensions, but the office of Commissioner of 
Pensions was not created till March, 1835. This officer was 
to execute, under the direction of the Secretaries of War and 
the Navy, such duties in relation to the various pension laws 
as might be prescribed by the President. The office was 
created for two years, but extended from time to time. In 
1849 it was transferred to the Department of the Interior and 
made permanent. 

The Land Office.—The public lands of the United States 
which are for sale are under the care of an officer styled the 
Commissioner of the General Land Office. This office was 
created in 1812, and it was made the duty of the Commis¬ 
sioner to attend to various matters touching the public lands 
which had before that been transacted in the several depart¬ 
ments of State, of the Treasury, and of War. The Land Office 
was placed in the Department of the Treasury till, on the 
creation of that of the Interior, in 1849, it was transferred to 
that department. 

The first survey of public lands was made in 1786, under 
the land ordinance of 1785. The lands surveyed were in 


THE DEPARTMENT OF THE INTERIOR 


347 


southeastern Ohio, and are known as the “ Seven Ranges.” 
The survey was made under the direction of Thomas Hutch¬ 
ins, Geographer of the United States. 

Besides a large corps of officers in Washington, the princi¬ 
pal officers under the Commissioner are Surveyors General, 
Registers of Land Offices, and Receivers of Land Offices. 

There are now thirteen Surveyors General —one in each 
surveying district . 1 Under their direction all the land is ac¬ 
curately surveyed and described, and thus prepared for sale. 
The United States system of surveys provides for the division 
of the lands into ranges, townships, sections, and fractions of 
sections. The ranges are bounded by meridian lines, six miles 
apart, and are numbered east and west from a principal me¬ 
ridian. These are divided into townships of six miles square, 
numbered north and south from a given parallel. Townships 
are divided into thirty-six sections of one mile square, or six 
hundred and forty acres. The sections are divided into quar¬ 
ters, which are again subdivided into eighths and sixteenths. 

The sections in a township are 
numbered, beginning at No. 1 in the 
northeast section, and proceeding 
west and east alternately, as indicated 
in the annexed diagram. The descrip¬ 
tion of land is thus made exact to 
tracts of forty acres ; as the N. W. i 
of the N. E J of Section 19, Town 
27 North, Range 18 West. 

By the ordinance of 1785, estab¬ 
lishing the system of surveys by 
ranges and townships, the sections of 
a township were numbered from south to north, the southeast section 
being No. 1, and the northwest section being No. 36. 

Registers are appointed in the several land districts, who 
receive applications for lands in their districts, file receipts 

1 In 1796 the office of Surveyor General was created, Rufus Putnam being the first 
incumbent. There was but one Surveyor General for a considerable period. 


6 

5 

4 

3 

2 

1 

7 

8 

9 

10 

11 

12 

18 

17 

16 

15 

14 

13 

19 

20 

21 

22 

23 

24 

30 

29 

28 

27 

26 

25 

31 

32 

33 

34 

35 

36 


























348 


THE EXECUTIVE DEPARTMENT 


for payments, and, on the final payment, give to the purchaser 
a certificate which entitles him to a patent, i.e., a deed from 
the United States. Formerly the patent was signed by the 
President, and countersigned by the Secretary of State ; after 
1812 the patent was countersigned by the Commissioner. 
Since 1836 a secretary, appointed by the President, signs 
patents in his name, and they are countersigned by the Re- 
corder. 

The government price of land is one dollar and a quarter 
an acre, but the sale of mineral lands and other special kinds 
of land is regulated by special laws, and there are also several 
laws establishing different methods by which to acquire ordi¬ 
nary land. 

The Receiver receives money or land-scrip from the pur¬ 
chaser, giving receipts therefor, which are passed over to the 
Register. 

Office of Indian Affairs.—Until 1832 the business of the 
government relating to the Indians had been managed by the 
clerks in the War Department. In that year Congress au¬ 
thorized the President to appoint a Commissioner, who should, 
under the direction of the Secretary of War, have the general 
superintendence of all Indian affairs. Since 1849 the Secre¬ 
tary of the Interior has had charge. The Commissioner has 
the direction of the inspectors and a large number of agents, 
under whom are many teachers, mechanics, laborers, etc. Their 
work is at the various Indian reservations and schools through¬ 
out the country. 

The Bureau of Education .—In 1867 “ A Department of Education” 
was established at Washington, for the purpose of collecting statistics 
showing the condition and progress of education in the States and Terri¬ 
tories, and of diffusing such information as might promote the cause of 
education throughout the country. In 1868 Congress enacted that “the 
Department of Education” should cease, and that there should be estab¬ 
lished and attached to the Department of the Interior an office to be 
denominated the Office of Education, the chief officer of which should be 


THE DEPARTMENT OF AGRICULTURE 


349 


styled the Commissioner of Education, who was to perform the duties 
before prescribed. 

The Director of the Geological Survey has charge of the classification 
of the public lands and the examination of their geological structure and 
products ; the preparation of topographical and geological maps ; the de¬ 
termination of the water supply of the United States 

The Director of the Declamation Service has charge of the survey, 
construction, and operation of the government irrigation works in arid 
States, authorized by the act of June 17th, 1902. The work of this bureau 
is of vast importance. The cost of the irrigation works is repaid by the 
purchasers of the lands irrigated, and the money is used for new works. 

The Director of the Bureau of Mines investigates the methods of min¬ 
ing, especially in relation to the safety of miners and the prevention of 
accidents, and the prevention of waste. 

The Director of the National Park Service manages and controls 
national parks and monuments. 


THE DEPARTMENT OF AGRICULTURE. 

In 1862 a “ Department of Agriculture ” was established at 
Washington, the object of which was to acquire and diffuse 
among the people useful information on subjects connected 
with agriculture. The chief officer was styled a Commis¬ 
sioner of Agriculture. Among other things it was provided 
that he should “ receive and have charge of all the property 
of the agricultural division of the Patent Office in the De¬ 
partment of the Interior, including the fixtures and property 
of the propagating garden.” For many years previous to 
1862 the Patent Office Report was partly devoted to agri¬ 
cultural facts and statistics. In its subordinate capacity, this 
“ Department of Agriculture ” was often a source of confusion. 
In his message of 1871 the President speaks of it in one sen¬ 
tence as a “department” and in another as the “Agricul¬ 
tural Bureau.” 

In 1889 Congress raised this bureau to the full rank of an 
executive department, and thus gave its chief, the Secretary 
of Agriculture, a seat in the Cabinet of the President. 


350 


THE EXECUTIVE DEPARTMENT 


The act of 1889 made the salary of the Secretary the same as that of 
the other heads of departments, namely, $8,000 ; it also provided for an 
Assistant Secretary. In 1907 the Secretary’s salary was made $12,000. 

For list of Secretaries, see Appendix. 

In the department there are organized the Weather Bureau, 
the Bureau of Animal Industry, and a number of other bu¬ 
reaus devoted to special branches of agricultural science ; such 
as the Forest Service and the bureaus of Chemistry, Plant 
Industry, Soils, Entomology, Biological Survey. The Bureau 
of Chemistry is also charged with the enforcement of the Pure 
Food Act of June 30th, 1906. 

This department maintains agricultural experiment stations 
and cooperates with those which have been established in all 
the States for investigating agricultural problems, such as 
irrigation, animal diseases, the use of fertilizers, etc. 

The Weather Bureau is an outgrowth of the Signal Service 
of the United States. Professor Cleveland Abbe, of the Cin¬ 
cinnati Observatory, began the publication of weather reports 
for the Cincinnati Chamber of Commerce in 1869. This led 
to a movement among commercial bodies in favor of the estab¬ 
lishment of a systematic service in the United States, and in 
the act of February 9th, 1870, Congress provided for a system 
of weather observations, forecasts, and reports, through the 
Signal Service branch of the army. The work was carried on 
by this service until July 1st, 1891, when it was transferred 
to the Agricultural Department. 

The Service began by supplying the principal cities with reports. In 
1873 the International Bulletin was establislnd. In 1878 there was be¬ 
gun the making and distribution of weather maps, indicating by drawings 
the approaching weather conditions in all sections of the United States, 
Canada, and the West Indies. The maps are based upon telegraphic reports 
sent out from Washington to all stations where such maps are issued ; 
these reports summarize, and are based upon, reports sent twice each 
day to the Washington office from all parts of the territory covered by 
the maps. The maps are issued daily, and are prognostications for from 
one to two or three days in advance, according to weather conditions. 


THE EXECUTIVE DEPARTMENT 


351 


THE DEPARTMENT OF COMMERCE. 

In 1903 the Cabinet was enlarged by the establishment of 
a ninth executive department, of which the head was called 
the Secretary of Commerce and Labor. The title of this office 
was shortened to Secretary of Commerce when the Department 
of Labor was created in 1913. The duty of the Department 
of Commerce is to foster, promote, and develop the foreign 
and domestic commerce, the mining, manufacturing, shipping, 
and fishery industries, and the transportation facilities of the 
United States. 

The act of 1903 provided for an Assistant Secretary. The Secretary’s 
salary was made $8,000 in 1903, and $12,000 in 1907. 

For list of Secretaries, see Appendix. 

The work of this department is for the most part divided 
among a number of bureaus, as follows: 

The Bureau of Foreign and Domestic Commerce collects and publishes 
useful information concerning our manufacturing industries, and concern¬ 
ing markets for their products. Information gathered by the consular 
officers of the United States is furnished to this bureau by the Depart¬ 
ment of State. 

The Commission of Fish and Fisheries—now called the Bureau of 
Fisheries —was established in 1871, with a Commissioner at its head. It 
propagates useful food fishes, investigates the causes of their decrease, and 
compiles statistics of fisheries. The work in Washington is subdivided 
among several divisions, and scattered over the country and along the 
coast are many Stations, each in the charge of a Superintendent. 

The Bureau of the Census. —As the census is taken once in ten years, 
the office of Director (or Superintendent) was formerly not permanent, 
but it was made so in 1902. Besides making thorough preparation for 
future decennial censuses, this bureau collects certain statistics at shorter 
intervals. 

Tne Bureau of Lighthouses superintends our lighthouses, light-vessels, 
beacons, buoys, etc. 

The Commissioner of Navigation has charge of the commercial marine 
and merchant seamen, especially the registering of vessels and the collec- 


352 


THE EXECUTIVE DEPARTMENT 


tion of tonnage taxes. The steamboat inspection laws, however, are 
administered by another officer—the Supervising Inspector-General. 

The Coast and Geodetic Survey prepares charts made from actual sur¬ 
vey of the entire seacoast of the United States; it also investigates and 
reports on other matters of importance in ocean navigation. 

The Bureau of Standards has the custody of the standard weights and 
measures of the United States, and makes comparisons and tests con¬ 
nected with them. 


THE DEPARTMENT OF LABOR. 

A “Department of Labor”—later called the Bureau of 
Labor—was established in 1888. This bureau became part 
of the Department of Commerce and Labor in 1903, and in 
1913 was made a separate department under a Secretary of 
Labor. 

The act of 1913 also provided for an Assistant Secretary. The Secre¬ 
tary’s salary is $12,000. 

The bureaus of the department are as follows: 

The Bureau of Immigration is charged with the administration of the 
laws relating to immigration and of the Chinese exclusion laws. 

The Bureau of Naturalization supervises the work of Federal and 
State courts in matters of naturalization and investigates the qualifica¬ 
tion of candidates for citizenship. 

The Bureau of Labor Statistics is charged with the duty of acquiring 
and diffusing useful information on subjects connected with labor. 

The Children's Bureau investigates and reports upon the employment 
of children and other matters pertaining to their welfare. 

INDEPENDENT COMMISSIONS, ETC. 

Besides the ten great executive departments, the executive 
branch of the government includes the following: 

Interstate Commerce Commission. —The history and duties of this com¬ 
mission are sufficiently treated on pages 93, 94. The terms of the com¬ 
missioners are so arranged that the term of only one expires each year. 
The commission is therefore a continuous body. Not more than four of 
them can be appointed from the same political party. 


CHIEF JUSTICES OF THE SUPREME COURT 


353 


The Civil Service Commission.—For the history and duties of this 
commission, see pages 191-193. 

The Government Printing Office.—The Public Printer is the officer in 
charge of this large division of the public service. He appoints the of¬ 
ficers and employees of the Printing Office (subject to the Civil Service 
Act), and purchases all necessary machinery and material. This office is 
charged with printing all public documents, the Congressional Record, etc. 

The Federal Trade Commission and The Federal Reserve Board are 
described on pages 96 and 118, respectively. 


THE JUDICIAL DEPARTMENT. 

CHIEF JUSTICES OF THE SUPREME COURT. 

A full account of the United States courts has been given 
in a former part of this work. 

The following is a list of Chief Justices of the Supreme 
Court of the United States : 

John Jay, New York, appointed September 26th, 1789. 
He was confirmed Envoy Extraordinary to England, April 
19th, 1794. Resigned as Chief Justice. 

John Rutledge, South Carolina, appointed July 1st, 1795, 
in the recess of the Senate; presided at the August term of 
the court. Rejected by the Senate, December 15th, 1795. 1 

Oliver Ellsworth, Connecticut, appointed March 4th, 
1796. Appointed Envoy Extraordinary and Minister Pleni¬ 
potentiary to France, February 27th, 1799. Resigned as 
Chief Justice. 2 

John Marshall, Virginia, appointed January 31st, 1801. 
He held the office until his death, July 6th, 1835. 

Roger B. Taney, Maryland, appointed March 15th, 1836. 
He presided until his death, October 12th, 1864. 


1 William Cushing, Massachusetts, then an Associate Justice, was appointed by the 
President and Senate January 27th, 1796, but declined. He continued to serve as 
Associate till his death in 1810. 

* John Jay, New York, was appointed by the President and Senate December 19th, 
1800, but declined. 

A. C.—23 


354 


THE JUDICIAL DEPARTMENT 


Salmon P. Chase, Ohio, appointed December 6th, 1864. 
Died in office, May 7th, 1873. 

Morrison R. Waite, Ohio, appointed January 21st, 1874. 
Died in office, March 23d, 1888. 

Melville W. Fuller, Illinois, appointed April 30th, 
1888. Died in office, July 4th, 1910. 

Edward D. White, Louisiana, appointed December 12th, 
1910. 

For a list of the Associate Justices, see Appendix. 

The United States is divided into nine judicial Circuits, 
each of which has two or more Circuit Judges, and to each 
one of which a Justice of the Supreme Court is allotted by 
order of that court. The Circuits are as follows : 

1st. Maine, Massachusetts, New Hampshire, Rhode Island, 
and Porto Rico. 

2d. Connecticut, New York, Vermont. 

3d. Pennsylvania, New Jersey, Delaware. 

4th. Maryland, West'Virginia, Virginia, North Carolina, 
South Carolina. 

5th. Georgia, Florida, Alabama, Mississippi, Louisiana, 
Texas. 

6th. Ohio, Michigan, Kentucky, Tennessee. 

7tli. Indiana, Illinois, Wisconsin. 

8th. Minnesota, Iowa, Missouri, Kansas, Arkansas, Ne¬ 
braska, Colorado, North Dakota, South Dakota, Wyoming, 
Utah, Oklahoma, and New Mexico. 

9th. California, Oregon, Nevada, Idaho, Montana, Wash¬ 
ington, Arizona, Alaska, and Hawaii. 

Each state constitutes one or more judicial Districts. 

The salary of the Chief Justice of the Supreme Court is $15,000 ; that 
of each Associate Justice, $14,500. The Circuit Judges receive each 
$7,000, and the District Judges $6,000 each. 


CHAPTER VIII. 


The State Governments. 

The Change from Colonies to States.-— In Chapter VI. 

an account has been given of the new States which have 
been admitted to the Union since the adoption of the Consti¬ 
tution. The thirteen original States were colonies until the 
Declaration of Independence. By that act the individual 
colonies were transformed into States, and the thirteen United 
Colonies assumed their position as a nation, under the name 
of the United States. The colonies had exercised some of the 
powers of government, while they acknowledged a common 
allegiance to Great Britain. “ By the Declaration of Inde¬ 
pendence the sovereignty of the thirteen colonies passed from 
the crown to the people dwelling in them, not as an aggre¬ 
gate body, but as forming States endowed with the func¬ 
tions necessary for their separate existence ; also. States in 
Union.” 1 

The nation began its existence on the 4th day of July, 
1776 ; and on the same day each of the thirteen colonies was 
transformed into a State—became an integral part of the 
nation. Each of the new States became such, when, having 
adopted a constitution, it was admitted into the Union by 
Congress. But the old thirteen did not become States by the 
formation of a constitution nor by a Congressional vote of 
admission. They were made States by the Declaration of In¬ 
dependence. No one of the thirteen was a State prior to that 
day, though a few of them had established temporary forms 

1 Frothingham, page 561. 

355 


356 


THE STATE GOVERNMENTS 


of government by the recommendation of Congress. Each 
was a State from that day, though some formed no State con¬ 
stitutions until months, and, in some cases, years had elapsed. 
Massachusetts remained under her colonial charter till 1780, 
Connecticut till 1818, and Rhode Island till 1842. 

Early Action of Some of the Colonies. —In the latter part 
of 1775 Congress had recommended to New Hampshire, 
South Carolina, and Virginia to modify their local govern¬ 
ments, to “continue during the dispute with Great Britain.” 
And in May, 1776, a like recommendation was made to “the 
several colonies where no governments sufficient to the exi¬ 
gencies of their affairs had been established.” In accordance 
with these recommendations New Hampshire, South Caro¬ 
lina, Virginia, and New Jersey—all being royal colonies— 
provided themselves with governments adapted to their neces¬ 
sities. But, in at least three of these four cases, the govern¬ 
ments were expressly declared to be temporary, to continue 
until the unhappy differences between Great Britain and 
America should be settled. 

Of the body that took this action in Virginia in 1776, Mr. 
Jefferson says : “ They received in their creation no powers 
but what were given to every legislature before or since. 
They could not, therefore, pass an act transcendent to the 
powers of other legislatures.” And of the instrument itself 
he says : “It pretends to no higher authority than the other 
ordinances of the same session.” Such instruments could 
hardly be called constitutions. 

Including the four already mentioned, the thirteen local governments 
were modified, or established, as follows : 


New Hampshire, 
South Carolina, 
Virginia, 

New Jersey, 

Delaware, 

Pennsylvania, 


January 5, 1776. 
March 26, 1776. 
June 29, 1776. 

July 2, 1776. 
September 20, 1776. 
September 28, 1776. 


THE CONSTITUTION OF OHIO 


357 


Maryland, 
North Carolina, 
Georgia, 

New York, 
Massachusetts, 
Connecticut, 
Rhode Island, 


September 16, 1818. 
November 23, 1842. 


November 8, 1776. 
December 18, 1776. 
February 6, 1777. 
April 20, 1777. 


March 2, 1780. 


Most of the States have altered their constitutions. Con¬ 
necticut and Rhode Island had no other constitutions than 
their colonial charters till 1818 and 1842 ; and the constitu¬ 
tions then adopted still remain. The constitution of 1820 of 
Massachusetts is still in force, though it has been amended. 

The State Constitutions resemble one another in their 
general provisions, while they differ in particulars. The 
Constitution of Ohio, adopted in 1851, may be taken as 
fairly illustrating the general principles of these instruments. 
It now contains eighteen articles, as follows: 

I. Bill of Rights. 

II. Legislative. 

III. Executive. 

IV. Judicial. 

V. Elective Franchise. 

VI. Education. 

VII. Public Institutions. 

VIII. Public Debt and Public Works. 

IX. Militia. 

X. County and Township Organizations. 

XI. Apportionment: (a) Legislative; (b) Judicial. 

XII. Finance and Taxation. 

XIII. Corporations. 

XIV. Jurisprudence. 

XV. Miscellaneous. 

XVI. Amendments. 

XVII. Elections. 

XVIII. Municipal Corporations. 


358 


THE STATE GOVERNMENTS 


The Bill of Rights has twenty sections. These relate to 
the right of freedom and the protection of property, freedom 
of speech and of the press, the rights of conscience, etc. 
Under the last head we find the following, taken in substance 
from the Ordinance of 1787 : “ Religion, morality, and knowl¬ 
edge being essential to good government, it shall be the duty 
of the General Assembly to pass suitable laws to protect every 
religious denomination in the peaceable enjoyment of its 
own mode of public worship, and to encourage schools and 
the means of instruction.” 

The twentieth section of the Bill of Rights is noteworthy 
as embodying in one sentence the substance of the ninth and 
tenth amendments of the Constitution of the United States. 
It is as follows : “ This enumeration of rights shall not be 
construed to impair or deny others retained by the people ; 
and all powers, not herein delegated, remain with the people.” 
It is sometimes said that while the powers of the United States 
government are delegated powers, those of the State govern¬ 
ments are not delegated but inherent. The constitution of 
Ohio certainly gives no countenance to any such distinction. 
The people of Ohio say as explicitly as language can express 
that their State government possesses no powers not delegated 
in their constitution. In their relation to the people, the 
general government and the State government are precisely 
alike. Each government is one of delegated powers, and one 
as much so as the other. In each case the powers are dele¬ 
gated by the people : to the State government by the people 
of the State, to the national government by the people of the 
United States. 

The Legislative power is vested in a General Assembly, 
consisting of a senate and a house of representatives, the 
members to be chosen every alternate year on the Tuesday 
after the first Monday in’November. The regular sessions 
commence on the first Monday of January of the odd years. 

The normal number of representatives is one hundred, who 


THE CONSTITUTION - OF OHIO 


359 


are distributed at the beginning of each decade among the 
counties in such manner as to equalize the representation. In 
practice a county may have one representative a part of a 
decade and two for the rest. And generally the whole num¬ 
ber is a little more than the normal number. The normal 
number of senators is thirty-five, who are distributed in the 
same way as the representatives. The apportionment is made 
by the governor, auditor, and secretary of state. 

A majority is a quorum in each house. The yeas and nays 
may be called at the desire of two members. The concur¬ 
rence of a majority of all the members elected in each house 
is necessary to pass a bill, and that of three-fifths to pass it 
over the governor’s veto. No bill shall contain more than one 
subject, which must be clearly expressed in its title. No new 
county shall contain less than 400 square miles, nor shall any 
county be reduced below that area, though a county of 100,000 
inhabitants may be divided with the approval of a majority of 
voters in each division. The General Assembly can not grant 
a divorce or perform any judicial act not expressly authorized 
in the constitution. 

The legislative power is not confined to the General Assembly. 
In accordance with an amendment to the State constitution 
adopted in 1912 the people have the power to initiate laws 
and also to approve or reject laws passed by the legislature. 

The Executive Department consists of a governor, lieuten¬ 
ant governor, secretary of state, auditor, treasurer, and an 
attorney-general. They are elected by the people on the 
Tuesday after the first Monday in November; the auditor 
for four years and the others for two. Their terms com¬ 
mence on the second Monday of January after their election. 
The governor has power, after conviction, to grant reprieves 
and pardons. He was given the veto power by an amendment 
adopted in 1903, but this power does not apply to laws pro¬ 
posed by the popular initiative or approved by the people on 
a referendum vote. The order of executive succession in case 


360 


THE STATE GOVERNMENTS 


of vacancy is: the lieutenant governor, the president of the 
senate, and the speaker of the house of representatives. 

Other State officers are a superintendent of public instruc¬ 
tion, superintendent of public works, adjutant general, superin¬ 
tendent of insurance, State board of agriculture, public utilities 
commission, tax commission, board of administration, industrial 
commission, State board of health, etc. All these officers are 
appointed by the governor. 

The Judicial System proper consists of a supreme court, 
courts of appeals, and courts of common pleas. There are also 
probate courts, one in each county, and justices of the peace 
in each township. The General Assembly may establish 
other courts inferior to the supreme court. This has been 
done in the larger cities. 

There is one Supreme Court , with seven judges. The State 
is divided into eight appellate districts, with three judges in 
each district. In each county there is a court of common pleas 
with one or more judges. 

The Probate Court is a court of record, held by one judge, 
who is elected for four years by the voters of the county. 
As the term signifies, he has jurisdiction in the matter of wills 
and estates, the appointment of administrators and guardians, 
the settlement of their accounts, etc. Other jurisdiction may 
be given him by law, such as issuing marriage licenses, ap¬ 
pointing school examiners, certain minor criminal cases, etc. 
In counties having less than sixty thousand people, this court 
may be abolished and its jurisdiction conferred on the court of 
common pleas. 

Justices of the Peace are elected for four years by the voters 
of the township. This is not a court of record, though the 
justice keeps a docket. Sometimes a jury is summoned, and 
cases involving more than a specified amount may be appealed 
to the court of common pleas. 

The judges of the supreme court and those of the courts of 
appeals and the courts of common pleas are chosen for six 


THE CONSTITUTION OF OHIO 


361 


years. Judges may be removed from office by vote of two 
thirds of the elected members of each house of the General 
Assembly, formal complaint having been made, and full 
opportunity to be heard being given. 

The Elective Franchise is limited to male 1 citizens of the 
United States of the age of twenty-one years who have 
resided in the State one year, and in the county, township, 
or ward, such time as may be provided by law. No idiot or 
insane person may vote. All elections must be by ballot. 
The General Assembly may exclude from voting or holding 
office for infamous crime. 

About four fifths of the States, like Ohio, limit voting to 
citizens of the United States. It is to be regretted that this 
practice is not universal. (See page 100.) 

Education. —In regard to education the constitution pro¬ 
vides that the principal of all funds granted or entrusted to 
the State for educational and religious purposes shall forever 
be preserved inviolate, and the income faithfully applied to 
the specific objects of the grant. The General Assembly shall 
provide by taxation and otherwise for a thorough and efficient 
system of common schools throughout the State, but no re¬ 
ligious sect or sects shall have any exclusive right to, or con¬ 
trol of, any part of the school funds of the State. The income 
from school lands and most of the income from State school 
taxes is expended upon the elementary schools. 

Public Institutions for the benefit of the insane, blind, 
deaf and dumb, must always be fostered and supported by 
the State. The directors of the penitentiary are to be ap¬ 
pointed or elected as the General Assembly may direct; but 
the trustees of the benevolent and other State institutions are 
appointed by the governor and senate. 

The Public Debt of the State may not exceed $750,000, 
except in case of insurrection or invasion. The credit of the 

1 Women are permitted by law to vote and be voted for at elections of school directors 
or members of school boards. 


362 


THE STATE GOVERNMENTS 


State shall not be given or loaned to any individual associa¬ 
tion, nor shall the State become a stockholder therein. The 
General Assembly can not authorize any county, city, town, 
or township to become a stockholder in, or loan its credit to, 
any association. A sinking fund is provided for, in order to 
pay the interest and principal of the State debt, and the 
auditor, secretary of state, and attorney-general are created a 
board under the style of “ The Commissioners of the Sinking 
Fund.” 

Superintendent of Public Works. —So long as the State has 

public works, as canals, needing superintendence, there shall 
be a Superintendent of Public Works, appointed by the 
governor. 

The Militia is composed of male citizens, residents of the 
State, between the ages of eighteen and forty-five. The law 
exempts certain classes from military duty. The line officers 
are elected by those who are subject to military duty, in their 
respective districts, and all military officers are commissioned 
by the governor. 

COUNTY AND TOWNSHIP ORGANIZATIONS. 

Under this head the first section is: “The General As¬ 
sembly shall provide by law for the election of such county 
and township officers as may be necessary.” County officers 
are to be elected on the Tuesday after the first Monday in 
November, and township officers at such times as may be 
prescribed by law. 

The organization of counties and townships is thus left 
almost entirely to the General Assembly, though incidental 
reference is made in the constitution to the sheriff and treas¬ 
urer, as also to the county commissioners and the township 
trustees. 

It has been seen that the government of a State, as a whole, 
is in the main like that of the United States. The General 


THE CONSTITUTION OF OHIO 


363 


Assembly with its senate and house of representatives is like 
Congress with its two houses; the different classes of State 
courts are similar to the national courts; and the governor, 
lieutenant governor, and other executive officers are like the 
President, Vice President, Secretaries, etc., of the United 
States government. But there is nothing in our general 
government to correspond to the county and township gov* 
ernment in the States. It is in these that we find the pecul¬ 
iar character of our local government, and these, therefore, 
deserve a somewhat careful consideration. 

COUNTY GOVERNMENT. 

The State of Ohio, containing 41,060 square miles, is di¬ 
vided into 88 counties and 1,372 townships. The average 
area of a county is thus about 463 square miles, and its num¬ 
ber of townships averages 15. The average area of a township 
in Ohio is a fraction under 30 square miles. According to 
the United States system of surveys a township contains 36 
square miles ; but in the Military District and the Western 
Reserve the townships are only five miles square, and in the 
Virginia Military District there is no regularity. Indeed, in 
most of the new States the civil townships often differ from 
the surveyed townships, as they are called. 

All but one of the States are divided into counties, 1 but in 
some of the southern and southwestern States the counties 
are not divided into townships. There are divisions for vot¬ 
ing or judicial purposes, smaller than counties and called by 
different names. Thus, in Tennessee, Meigs County has civil 
districts , numbered from 1 to 8 ; Henry County has twenty, 
five such, from 1 to 25. In Virginia and West Virginia they 
are called magisterial districts ; as, “Union Magisterial Dis¬ 
trict," in Wood County, West Virginia. In Mississippi each 
county is divided into five beats, sometimes with a specific 

1 Louisiana is divided, instead, into parishes. 


364 


THE STATE GOVERNMENTS 


name and sometimes with a number; as “Beat 1, Jefferson 
County.” But in these States and in some others there are 
no townships as they are known in Ohio. 

In the matter of local government there are two different 
systems to be found in the United States. In the New Eng¬ 
land States the town, answering to the civil township of Ohio, 
is the unit. In all the Southern States the county is the unit. 
The system of Ohio and many other States is intermediate be¬ 
tween the two. It is neither the town system of the East nor 
the county system of the South. The county has more power 
than in the New England States, the township has less. No 
one has spoken more strongly in favor of the town system than 
Mr. Jefferson. He recommended the division of the counties 
of Virginia into wards of six miles square. “ These wards,” 
he said, “called townships in New England, are the vital 
principle of their governments, and have proved themselves 
the wisest invention ever devised by the wit of man for 
the perfect exercise of self-government and for its preserva¬ 
tion.” 

The officers of the county are three commissioners, one or 
more judges of the court of common pleas, judge of probate, 
clerk of the court of common pleas, auditor, treasurer, sheriff, 
prosecuting attorney, recorder, surveyor, coroner. These are 
all elected by the people, the judges of the court of common 
pleas for six years, the judge of probate for four years, and 
the others for two years. The treasurer and sheriff are not 
eligible for more than four years in six. There is no re¬ 
striction as to the others. 

The commissioners are the general guardians of the inter¬ 
ests of the county. All the public property of the county is 
under their charge, the county buildings are erected and re¬ 
paired under their direction, State and county roads are laid 
out and constructed, and bridges built by them. They have 
the power to levy taxes for these purposes, the maximum rate 
depending upon the amount of taxable property. The com- 


THE CONSTITUTION OF OHIO 


365 


missioners may change the boundaries of townships and form 
new ones. They can divide a township into election dis¬ 
tricts. 

New roads are built or old ones are altered on petition of 
those interested in the matter, and also on report of viewers 
appointed by the commissioners. So township boundaries may 
be altered on petition of those interested, and it is after a peti¬ 
tion of a majority of voters that a township is divided into 
election districts. The commissioners also have charge of the 
county infirmary. 

Most county officers make annual reports to the commis¬ 
sioners, but these report to the court of common pleas. A 
vacancy in the board of commissioners is filled by the probate 
judge, auditor, and recorder. The auditor, being ex officio 
secretary of the commissioners, keeps the records of their 
proceedings. Their regular meetings, which are quarterly, 
are held at his office, and must be conducted according to 
parliamentary law. It will be seen from this that the duties 
of the commissioners are of great responsibility, and for this 
reason only the best men of the county should be selected for 
this office. 

The offices of judge of common pleas and probate judge have 
already been considered under the head of the judicial 
system. 

The clerk of the court of common pleas was called under the 
Territory the prothonotary, and was appointed by the gov¬ 
ernor. Under the first constitution each court appointed its 
own clerk for a period of seven years. Since 1851 the office 
has been elective. He preserves the papers, issues writs, and 
keeps the records of the circuit court as well as that of com¬ 
mon pleas. The election returns of the county are made to 
him, so that he is in some sense the clerk of the county; 
though the auditor, who keeps the records of the commis¬ 
sioners, has much to do with preserving an account of the 
public business of tjie county. 


366 


THE STATE GOVERNMENTS 


The auditor receives the returns of the assessors, and keeps 
a complete list of the taxable property, with its value. When 
the county board of revision or the State tax commission finds 
an assessment incorrect, the auditor must make the necessary 
changes in the list. He apportions the taxes among the tax¬ 
payers of the county and prepares the list called the tax-dupli¬ 
cate for the treasurer, whose chief duty it is to collect the 
taxes. The auditor draws orders on the treasurer, and no 
money is paid without his order. The efficiency of the com¬ 
missioners depends in considerable degree on the auditor, who 
needs to be a man of intelligence, good judgment, and clear 
perception. The work of some officials is largely routine work, 
but mere excellence in routine could never be sufficient quali¬ 
fication for an auditor. 

The county treasurer collects all the taxes of the county after 
the rate of taxation has been determined by the county auditor. 
In many of the Eastern States there is a collector for each 
township, and the money to be expended in the township does 
not go into the county treasury. But in Ohio and most 
Western States, all taxes are paid to the county officer, and 
he pays out on the order of the auditor to the several town¬ 
ship treasurers, and to the treasurers of any cities or villages 
in the county. The treasurer’s term is two years, and he can 
serve but four years in six. 

The duty of the sheriff is the same everywhere. He is to 
preserve the peace of the county, to apprehend criminals and 
hold them in custody, to have the oversight of the county 
jail, to execute the orders of the courts in the service of 
writs, etc. The term is two years, but by the constitution he 
can hold office only four years in six. 

All attorneys-at-law are officers of the court, but the prose¬ 
cuting attorney of a county is specially so. He attends to the 
drawing up of indictments for the action of the grand jury, 
and to the prosecution before the court of all criminals who 
have been indicted, as well as those tried for minor offenses. 


THE CONSTITUTION OF OHIO 


367 


Before the year 1833 the prosecuting attorney was appointed 
by the court, but since that date he has been elected by the 
people. 

The county recorder keeps a record in permanent form of all 
deeds, mortgages, village plats, etc. A power of attorney, by 
which the owner of land authorizes another person to transfer 
it, must be recorded by this officer in order to make the title 
good. There is no better system of record to be found in any 
other country, yet many persons are very negligent, letting 
deeds and mortgages made to them remain unrecorded fox- 
months and perhaps for years, and thus risking the loss of 
their property. The service is paid for by fees prescribed 
by law. 

The county surveyor makes surveys required by the court, 
and may be engaged to make surveys for private persons. 
Early in the history of the State he was appointed by the 
court, as was also the recorder. 

The principal duty of the coroner is to hold inquest—with 
or without the assistance of a jury as he may determine—in 
cases of death by violence. Formerly, if the office of the 
sheriff was vacant, or if the sheriff was a party in a suit, the 
coroner was required to take his place; but that provision no 
longer exists in Ohio. The office of coroner is declining in 
importance in many states. 

In the year 1866 an act was passed by the General As¬ 
sembly, authorizing the commissioners of any county to 
establish children’s homes and provide for their support by 
taxation. The trustees of the home , four in number, are ap¬ 
pointed by the commissioners of the county. More than half 
the counties in the State have provided themselves with these 
institutions. 

The charitable and corrective institutions of the county are 
examined regularly by a board of visitors. The board is com¬ 
posed of six members, three men and three women. They are 
appointed by the judge of the probate court. 


368 


THE STATE GOVERNMENTS 


TOWNSHIP GOVERNMENT. 

The township officers elected by the people are: three 
trustees, clerk, treasurer, justices of the peace, assessor, con¬ 
stables, board of education. Since 1906 they have been elected 
on the Tuesday after the first Monday in November in odd- 
numbered years. The justices of the peace and board of 
education are elected for four years; the other officers for two 
years. 

The trustees are to the township what the commissioners are 
to the county. They are the legal guardians of the public 
interests of the township. They are like the selectmen of the 
New England town. The township trustees may to a limited 
extent levy taxes; they open township roads on petition; 
divide the township into road districts; have charge of the 
poor who are not in the county infirmary ; may purchase and 
care for cemeteries; select jurors; build and repair bridges 
where the expenditure is small; act as judges of elections; 
determine the number of constables for the township. 

The clerk of the township is the clerk of the trustees. He 
attends their meetings, keeps the records of their proceedings, 
and draws orders on the treasury for whatever appropriations 
are made by them. He is also clerk of the township board of 
education. 

The treasurer receives from the county treasurer the moneys 
belonging to the township, and makes payments on orders 
drawn by the clerk in accordance with the action of the 
trustees. He is the treasurer of the school funds also, paying 
out moneys on the order of the clerk. He is paid a small 
commission for disbursing the funds. 

The justices of the peace have already been considered under 
the head of the judicial system. 

For school purposes a township is divided into subdistricts, 
each of which elects a director each year. But the subdistricts 
and their directors are under the control of the township board 


THE CONSTITUTION OF OHIO 


369 


of education of five members. This body has full and absolute 
control and management of all the schools in the township, 
being empowered to build, enlarge, repair, and furnish the 
necessary schoolhouses, purchase or lease sites, rent suitable 
schoolrooms, and, in short, make all other provisions necessary 
for the convenience and prosperity of the schools within the 
subdistricts. 

The township school districts do not include villages or 
cities, each of which has a board of education of its own. 
Each board of education has the management and control of 
the public schools of the district, with full power to appoint 
a superintendent and assistant superintendents of the schools, 
a superintendent of buildings, teachers, janitors, and other 
employees, and fix their salaries or pay, which may be in¬ 
creased but can not be diminished during the term for which 
the appointment is made. 

The constable is a police and ministerial officer. He arrests 
criminals, serves writs and other notices, subpoenas witnesses, 
summons those drawn as jurors, etc. He is the ministerial 
officer of the court of the justice of the peace, as the sheriff is 
of the higher courts. 

Apportionment.—The subject of apportionment, so far as 
regards senators and representatives in the General Assembly, 
has already been considered; and the Constitution having been 
amended as to the judiciary, judicial apportionment needs no 
consideration. 

Finance and Taxation.—A poll tax being deemed grievous 
and oppressive, it can not be levied for State or county pur¬ 
poses. All property, real and personal, is to be taxed at its 
true value in money, excepting bonds of the State of Ohio and 
of its cities, counties, etc.; but the public property, that used 
for educational, charitable, and religious purposes, and personal 
property not exceeding $200 for each person, may be exempted 
from taxation. 

A. C.—24 


370 


THE STATE GOVERNMENTS 


All property is assessed every year between tbe second 
Monday in April and the first Monday in June. For this pur¬ 
pose one assessor is elected in each village, and in each city 
ward or assessment district into which a city may be divided. 
The assessors send to each property owner a notice directing 
him to make out a statement of his property. Upon receiving 
the statements the assessors then determine the value of the 
property. 

If a property owner believes that the assessment is incorrect, 
he may appeal to the county board of revision, consisting of 
three members. After the list of assessments is revised and 
completed, the county treasurer collects the taxes. The taxes 
are due by the twentieth of September in each year, but they 
may be paid in two installments, the first on the above date 
and the second in the following June. 

The State is forbidden by the constitution to contract any 
debt for internal improvement. 

Corporations are to be formed under general laws; not by 
special acts. 

Formerly each stockholder in a corporation was liable, 
above the stock owned by him, to an additional sum equal in 
amount to his stock; but this provision was struck out in the 
year 1903. 

“ The General Assembly shall provide for the organization 
of cities and incorporated villages by general laws.” 

In all States, communities with a compact population, 
known as cities, towns, and villages, are provided with gov¬ 
ernments adapted to their peculiar circumstances. The 
ordinary township government is inadequate for such com¬ 
munities. 

In Ohio all municipal corporations which at the last Federal 
census had a population of 5,000 or more are cities, and all 
such corporations having less than 5,000 are villages. The 
minimum population of a village, before it can be incor¬ 
porated, is 300. 


THE CONSTITUTION OF OHIO 


371 


In 1902 the General Assembly passed the Municipal Code 
for the government of cities in Ohio. The chief officers of a 
city governed in accordance with this code are a mayor, council, 
president of council, auditor, treasurer, solicitor, and board of 
education. All of them except the board of education are 
elected for terms of two years. 

The mayor is the chief executive officer. He has to some 
extent the appointing power, and acts as a judge before whom 
those violating city ordinances are brought. 

In some cities there are judges of police courts. 

The council is composed of members elected partly by wards 
and partly by the city at large. It enacts ordinances for the 
government of the city, levies taxes, provides city buildings, 
supplies gas and water, etc. The president of council succeeds 
to the office of mayor on the occurrence of a vacancy. 

The duties of the auditor , treasurer , and solicitor are appar¬ 
ent from the titles of these officers. 

The director of public service , appointed by the mayor and 
council, manages the public works, buildings, streets, etc. 

The director of public safety , appointed by the mayor and 
council, has charge of the police and fire departments. The 
directors of public service and of public safety take the place 
of boards which were formerly elected by the people. 

The board of education , consisting of members elected for 
four years, has charge of the schools, which are brought into 
one system with a superintendent at its head. It has the 
power of taxation within defined limits. For a special tax, as 
for the erection of buildings, a vote of the people is necessary. 

In 1912 an amendment to the constitution was adopted em¬ 
powering cities to adopt any form of government the voters 
desire. 

The government of a village is somewhat simpler than a 
city government. The chief officers of a village are a mayor, 
council, clerk, treasurer, marshal, street commissioner, and 
board of education. 


372 


THE STATE GOVERNMENTS 


Jurisprudence.—Article XIV. of the constitution provided 
for the appointment b} 7- the General Assembly in its first 
session of three commissioners to revise and simplify the prac¬ 
tice, pleadings, etc., of the courts of record of the State. 

Miscellaneous.—In Article XV. are these, among other 
provisions: 

No person shall be elected or appointed to any office unless 
he have the qualifications of an elector. 

Duelists and those aiding or abetting them can not hold 
office. 

Lotteries and the sale of lottery tickets are forever pro¬ 
hibited. 

A bureau of statistics may be established in the secretary 
of state’s office. 

Amendments to the constitution are provided for by Arti¬ 
cle XVI. They may be proposed by either branch of the 
legislature. If agreed to by three fifths of the members 
elected to each house, they shall be published in each county 
for six months before the next election of senators and rep¬ 
resentatives, at which time they shall be submitted to the 
electors. If adopted by a majority of votes cast at such 
election, they become a part of the constitution. If more 
than one be submitted at the same time they must be voted 
on separately. 

A convention to revise the constitution may be called when¬ 
ever two thirds of the elected members of each house shall 
recommend it to the people and a majority of the electors 
shall so vote. The convention shall consist of as many mem¬ 
bers as the house of representatives. Every twentieth year 
the question of a convention is to be submitted to the people, 
and one is to be held if a majority vote for it. No amend¬ 
ments so made shall have the force of laws until adopted by 
a majority of those voting thereon. 

Under this clause a convention was called in 1871, but the 
constitution as amended by them was rejected by the people. 


THE CONSTITUTION OF OHIO 


373 


In 1891 no convention was held. In 1910 the people voted to 
call for a convention. Delegates were elected in November, 
1911, and the convention met in 1912 and proposed forty-two 
amendments for submission to the people on September 3. 
Thirty-four of the proposed amendments were adopted. 

Amendments proposed by the General Assembly have been 
adopted, but no convention has been called in consequence of 
a two thirds vote of that body. 

Elections.—Article XVII., added to the constitution in 1905, 
provides that elections for State and county officers shall be 
held on the Tuesday after the first Monday in November in 
the even-numbered years, and all elections for all other 
elective officers on the same Tuesday in the odd-numbered 
years. The terms of State and local officers are fixed at two, 
four, or six years, or the General Assembly is given power to 
make the terms an even number of years within certain limits. 
Thus township and municipal elections are kept distinct from 
State and county elections. 

This account of the State government of Ohio will give a 
general idea of the governments of the other States. They 
differ in many minor particulars, as the power of the execu¬ 
tive, the right of suffrage, the terms of office, the mode cf 
election of judges, the details of local government, etc. 

In the New England States the senators and representatives 
were formerly elected annually, but now all except one have 
adopted the biennial system. In more than half the States 
the senators are elected for a longer period than the repre¬ 
sentatives. The house of representatives is usually larger 
than the senate—generally about as three to one. In some 
States the ratio is much larger than that. In most States the 
two houses are called the Legislature or the General Assem¬ 
bly. In Massachusetts and New Hampshire the colonial 
style, the General Court, is still used. In New York and a 
few other States the lower house is called the Assembly, and 


374 


THE STATE GOVERNMENTS 


in Maryland, Virginia, and West Virginia it is called the 
House of Delegates. 

The judges of the supreme court are in most States elected 
by the people, but in others by the legislature. Other States, 
Maine, New Hampshire, and Massachusetts, provide for an 
appointment by the governor and council; some others, by 
the governor and the senate. Their term of office ranges 
from one year to life (good behavior). The longest specified 
term is in Pennsylvania — twenty-one years. In this last 
State they are not reeligible. 

In a number of States suffrage was formerly limited to 
“ white ” persons, but the Fifteenth Amendment to the Con¬ 
stitution renders this limitation inoperative. Most of the 
States require the voter to be a citizen of the United States ; 
but about a fifth of them make the legal declaration of inten¬ 
tion to become a citizen sufficient. A residence of one year in 
the State is required in most of the States, though a number 
make six months sufficient; a few require two years. Several 
States make the payment of taxes a requisite for voting, and 
several require that voters shall be able to read. Idiots, in¬ 
sane persons, and those convicted of infamous crime are gen¬ 
erally excluded from the suffrage, and in some States paupers 
also. 

These particulars give a general idea of the sphere of the . 
State governments, and show in what respects their constitu¬ 
tions differ. It will be seen that, ordinarily, the citizen has 
a more direct and personal relation to the laws of the State 
than to those of the nation. For many years prior to the civil 
war the people were conscious of their relation to the nation 
chiefly by the congressional and presidential elections. Taxes 
were paid to the State officials, and the laws which regulated 
the daily life of the people came from the State legislatures 
and not from Congress. But during the war the nation be¬ 
came to every man a distinct reality. 

In general, the State governments have to do with matters 


THE STATE GOVERNMENTS 


375 


that are local and municipal, in distinction from those which 
are general and national. The well-being of the people is of 
course dependent upon both governments, though State 
legislation bears more directly than national upon their pros¬ 
perity and happiness. There are some matters controlled by 
the States in regard to which uniformity is desirable ; as, for 
example, the descent of property. It is unfortunate that a 
will, made and executed according to the forms of law in one 
State, should subsequently be found to be invalid because the 
death of the testator had occurred in another State to which 
he had removed. 

The American people thus constitute one nation with 
whom is the sovereignty ; but they have a government which 
is twofold—exists in two departments. To each of these de¬ 
partments the nation has committed certain governmental 
trusts. It might have distributed these trusts differently— 
given more to the one and less to the other. The nation may 
alter the distribution when it pleases ; for, strictly, the sov¬ 
ereignty does not belong to the government of a nation, but 
to the nation itself, which has established the government. 
The people are undoubtedly competent to change the char¬ 
acter of the government, and give it such form as they may 
think will most promote their interests. But as the people 
of the United States are also the people of the States sever¬ 
ally, we may rest satisfied that no change will ever be made 
which the people of the States do not believe will be for 
their common good. 














APPENDIX. 


For list of Presidents, see pages 324-27. 

The following is the list of Vice Presidents: 


John Adams, 

1789 

to 

1797. 

Thomas Jefferson, 

1797 

to 

1801. 

Aaron Burr, 

1801 

to 

1805. 

George Clinton, 

1805 

to 

1812.* 

Elbridge Gerry, 

1813 

to 

1814. a 

Daniel D. Tompkins, 

1817 

to 

1825. 

John C. Calhoun, 

1825 

to 

1832. 3 

Martin Van Buren, 

1833 

to 

1837. 

Richard M. Johnson, 

1837 

to 

1841. 

John Tyler, 

1841 

to 

1841. 4 

George M. Dallas, 

1845 

to 

1849. 

Millard Fillmore, 

1849 

to 

1850. 5 

William R. King, 

1853 

to 

1853.® 

John C. Breckenridge, 

1857 

to 

1861. 

Hannibal Hamlin, 

1861 

to 

1865. 

Andrew Johnson, 

1865 

to 

1865. 7 

Schuyler Colfax, 

1869 

to 

1873. 

Henry Wilson, 

1873 

to 

1875.® 

William A. Wheeler, 

1877 

to 

1881. 

Chester A. Arthur, 

1881 

to 

1881. 9 

Thomas A. Hendricks, 

1885 

to 

1885.'° 

Levi P. Morton, 

1889 

to 

1893. 


J Died April 20. 1812. 

* Died November 23, 1814. 

* Resigned December 28, 1832. 

4 Became President April 6, 1841. 

* Became President July 9, 1850. 


* Died April 18, 1863. 

1 Became President April 15, 1865. 

8 Died November 23, 1875. 

9 Became President September 20, 1881. 
10 Died November 25, 1885. 

i 





11 


APPENDIX 


Adlai E. Stevenson, 
Garret A. Hobart, 
Theodore Roosevelt, 
Charles W. Fairbanks, 
James S. Sherman, 
Thomas R. Marshall, 


1893 to 1897. 
1897 to 1899. 1 
1901 to 1901. 2 
1905 to 1909. 
1909 to 1913. 
1913 to -. 


Senators who have presided over the Senate as presidents 
pro tempore when there was no Vice President: 

William H. Crawford, after the death of George Clinton. 

John Gaillard, after the death of Elbridge Gerry. 

Hugh L White, after the resignation of John C Calhoun. 

Samuel L. Southaid, ) dur i n g the Presidency of John Tyler. 
Willie P. Mangum, i 

William R. King, during the Presidency of Millard Fillmore. 

David R. Atchison, ) after the death of w R King. 

Jesse D. Bright, S 

Lafayette S. Foster, J dur } n g the Presidency of Andrew Johnson. 
Benjamin F. Wade, { 

Thomas W. Ferry, after the death of Henry Wilson. 

David Davis, ) dur j n t he p res i denC y 0 f a. Arthur. 

George F. Edmunds, ) 

John Sherman, ) a f ter th e death of Thomas A. Hendricks. 

John J. Ingalls, ) 

William P. Frye, after the death of Garret A. Hobart. 

William P. Frye, during the Presidency of Theodore Roosevelt. 
Augustus O. Bacon, ) , , 

Jacob H. Gallinger, > after the death of James s * Sherman. 


Speakers of the House of Representatives. 


1st Congress, 

F. A. Muhlenberg, 

Penn. 

2d “ 

Jonathan Trumbull, 

Conn. 

3d “ 

F. A. Muhlenberg, 

Penn. 

4th “ 

Jonathan Dayton, 

N. J. 


1 Novem ber 21,1899. s Became President September 14,1901. 




APPENDIX 


iii 


5th Congress, 

Jonathan Dayton, 

N J. 

6th “ 

Theodore Sedgwick, 

Mass. 

7th 

Nathaniel Macon, 

N. C. 

8th “ 

Nathaniel Macon, 

N. C. 

9 th “ 

Nathaniel Macon, 

N. C. 

10th “ 

Joseph B Yarnum, 

Mass. 

11th “ 

Joseph B Varnum, 

Mass. 

12 th “ 

Henry Clay, 

Ky. 

13th “ 

Henry Clay, 

Ky. 

Langdon Cheves, 

S. C. 

14th 

Henry Clay, 

Ky. 

15th “ 

Henry Clay, 

Ky. 

16th “ 

Henry Clay, 

Ky. 

John W. Taylor, 

N. Y. 

17th “ 

P. P. Barbour, 

Va. 

18th 

Henry Clay, 

Ky. 

19th “ 

John W Taylor, 

N. Y. 

20th “ 

Andrew Stevenson, 

Va. 

21st “ 

Andrew Stevenson, 

Va. 

22d 

Andrew Stevenson, 

Va. 

23d “ j 

l Andrew Stevenson, 

Va. 

f John Bell, 

Tenn. 

24th “ 

James K. Polk, 

Tenn. 

25th “ 

James K. Polk, 

Tenn. 

26th “ 

R. M. T. Hunter, 

Va. 

27tb “ 

John White, 

Ky. 

28tb 

John W Jones, 

Va. 

29th “ 

John W Davis, 

Ind. 

30th 

Robert C. Winthrop, 

Mass. 

31st “ 

Howell Cobb, 

Ga. 

32d 

Linn Boyd, 

Ky. 

33d 

Linn Boyd, 

Ky. 

34th “ 

Nathaniel P Banks, 

Mass. 

35th “ 

James L. Orr, 

S C. 

36tb 

William Pennington, 

N. J. 

37tb 

Galusha A Grow, 

Penn 

38th 

Scbuyler Colfax, 

Ind. 

39th “ 

Schuyler Colfax, 

Ind. 

40tb “ 

Schuyler Colfax, 

Ind. 

41st 

James G. Blaine, 

Maine 

42d 

James G. Blaine, 

Maine. 




IV 


APPENDIX 


43d Congress, 

James G. Blaine, 

Maine. 

44th 


\ Michael C. Kerr, 

Ind. 

it 

/ Samuel J. Randall, 

Penn. 

45th 

u 

Samuel J. Randall, 

Penn. 

46th 

u 

Samuel J. Randall, 

Penn. 

47th 

u 

Joseph Warren Keifer, 

Ohio. 

48th 

u 

John G. Carlisle, 

Ky. 

49th 

44 

John G. Carlisle, 

Ky. 

50th 

u 

John G. Carlisle, 

Ky. 

51st 

u 

Thomas B. Reed, 

Maine. 

52d 

41 

Charles F. Crisp, 

Ga. 

53d 

44 

Charles F. Crisp, 

Ga. 

54th 

44 

Thomas B. Reed, 

Maine. 

55th 

(4 

Thomas B. Reed, 

Maine. 

56th 

44 

David B. Henderson, 

Iowa. 

57th 

44 

David B. Henderson, 

Iowa. 

58th 

(4 

Joseph G. Cannon, 

Ill. 

59th 

44 

Joseph G. Cannon, 

Ill. 

60th 

44 

Joseph G. Cannon, 

Ill. 

61st 

44 

Joseph G. Cannon, 

Ill. 

62d 

44 

Champ Clark, 

Mo. 

63d 

44 

Champ Clark, 

Mo. 

64th 

44 

Champ Clark, 

Mo. 


Secretaries of State. 


Thomas Jefferson, 

Va., 

appointed 

Sept. 26, 1789. 

Edmund Randolph, 

Va., 

44 

Jan. 2, 1794. 

Timothy Pickering, 

Mass., 

44 

Dec. 10, 1795, 

John Marshall, 

Va., 

44 

May 13, 1800. 

James Madison, 

Va , 

44 

March 5, 1801. 

Robert Smith, 

Md., 

44 

March 6, 1809. 

James Monroe, 

Va., 

44 

April 2, 1811. 

John Q. Adams, 

Mass., 

44 

March 5, 1817. 

Henry Clay, 

Ky., 

44 

March 7, 1825. 

Martin Van Buren, 

N. Y., 

44 

March 6, 1829. 

Edward Livingston, 

La., 

44 

May 24, 1831. 

Louis McLane, 

Del , 

44 

May 29, 1833. 

John Forsyth, 

Ga., 

44 

June 27, 1834 





APPENDIX 


V 


Daniel Webster, 

Hugh S. Legare, ad int ., 
Abel P. Upshur, 

John C. Calhoun, 

James Buchanan, 

John M. Clayton, 

Daniel Webster, 

Edward Everett, 

William L. Marcy, 

Lewis Cass, 

Jeremiah S. Black, 
William H. Seward, 

Elihu B. Washburne, 
Hamilton Fish, 

William M. Evarts, 

James G. Blaine, 

Frederick T. Frelinghuysen, 
Thomas F. Bayard, 

James G. Blaine, 

John W. Foster, 

Walter Q. Gresham, 
Richard Olney, 

John Sherman, 

William R. Day, 

John Hay, 

Elihu Root, 

Philander C. Knox, 

William J. Bryan, 

Robert Lansing, 


Mass., 

appointed March 5, 1841. 

S. C., 

tt 

May 9, 1843. 

Va., 

tt 

July 24, 1843. 

S. C., 

tt 

March 6, 1844. 

Penn., 

tt 

March 5, 1845. 

Del., 

tt 

March 7, 1849. 

Mass., 

tt 

July 22, 1850. 

Mass., 

tt 

Nov. 6, 1852. 

N. Y , 

tt 

March 7, 1853. 

Mich., 

tt 

March 6, 1857. 

Penn., 

tt 

Dec. 17, 1860. 

N. Y., 

t< 

March 5, 1861. 

Ill., 

tt 

March 5, 1869. 

N. Y., 

tt 

March 11, 1869, 

N. Y., 

tt 

March 12,1877. 

Maine, 

tt 

March 5, 1881. 

N. J., 

tt 

Dec. 12, 1881. 

Del., 

tt 

March 6, 1885. 

Maine, 

it 

March 5, 1889. 

Ind., 

tt 

June 29, 1892. 

Ill., 

it 

March 6, 1893. 

Mass., 

tt 

June 8, 1895. 

Ohio, 

tt 

March 5, 1897. 

Ohio, 

tt 

April 26, 1898. 

D. C., 

tt 

Sept. 20, 1898. 

N. Y., 

tt 

July 7, 1905. 

Penn., 

tt 

March 5, 1909. 

Nebr., 

tt 

March 5, 1913. 

N. Y., 

tt 

June 23, 1916. 


It will be seen that six Secretaries of State afterward were 
elected to the Presidency, viz., Jefferson, Madison, Monroe, 
J. Q. Adams, Van Buren, and Buchanan. 


Secretaries of the Treasury. 


Alexander Hamilton, 
Oliver Wolcott, 


N. Y., 
Conn. 


appointed Sept. 11, 1789. 
“ Feb. 3, 1795. 



VI 


APPENDIX 


Samuel Dexter, 

Mass., 

appointed Dec. 31, 1800. 

Albert Gallatin, 

Penn., 

tt 

May 14, 1801. 

George W. Campbell, 

Tenn., 

tt 

Feb. 9, 1814. 

Alexander J. Dallas, 

Penn., 

tt 

Oct. 6, 1814. 

William H. Crawford, 

Ga., 

tt 

Oct. 22, 1816. 

Richard Rush, 

Penn., 

tt 

March 7, 1825. 

Samuel D. Ingham, 

Penn., 

tt 

March 6, 1829. 

Louis McLane, 

Del., 

tt 

Aug. 8, 1831. 

William J. Duane, 

Penn., 

tt 

May 29, 1833. 

Roger B. Taney, 

Md., 

It 

Sept. 23, 1833. 1 

Levi Woodbury, 

N. H., 

tt 

June 27, 1834. 

Thomas Ewing, 

Ohio, 

tt 

March 5, 1841. 

Walter Forward, 

Penn., 

tt 

Sept. 13, 1841. 

John C. Spencer, 

N. Y., 

tt 

March 3, 1843. 

George M. Bibb, 

Ky., 

tt 

June 15, 1844. 

Robert J. Walker, 

Miss., 

tt 

March 5, 1845. 

William M. Meredith, 

Penn., 

tt 

March 8, 1849. 

Thomas Corwin, 

Ohio, 

tt 

July 23, 1850. 

James Guthrie, 

Ky, 

tt 

March 7, 1853. 

Howell Cobb, 

Ga., 

tt 

March 6, 1857. 

Philip F. Thomas, 

Md, 

tt 

Dec. 12, 1860. 

John A. Dix, 

N. Y, 

tt 

Jan. 11, 1861. 

Salmon P. Chase, 

Ohio, 

tt 

March 7, 1861. 

William P. Fessenden, 

Maine, 

tt 

July 1, 1864. 

Hugh McCulloch, 

Ind, 

tt 

March 7, 1865. 

Alexander T. Stewart, 

N. Y., 

tt 

March 5, 1869. 2 

George S. Boutwell, 

Mass, 

tt 

March 11, 1869. 

William A. Richardson, 

Mass, 

tt 

March 17, 1873. 

Benjamin H. Bristow, 

Ky, 

tt 

June 4, 1874. 

Lot M. Morrill, 

Maine, 

tt 

July 7, 1876. 

John Sherman, 

Ohio, 

tt 

March 8, 1877. 

William Windom, 

Minn., 

tt 

March 5, 1881. 

Charles J. Folger, 

N. Y, 

tt 

Oct. 27, 1881. 

Walter Q. Gresham, 

Ind, 

tt 

Sept. 24, 1884. 

Hugh McCulloch, 

Ind, 

tt 

Oct. 28, 1884. 

Daniel Manning, 

N. Y, 

tt 

March 6, 1885. 

Charles S. Fairchild, 

N. Y, 

<t 

March 31, 1887. 

William Windom, 

Minn., 

tt 

March 5, 1889. 

Charles Foster, 

Ohio, 

tt 

Feb. 24, 1891. 


1 Rejected by the Senate. 

3 Not confirmed by the Senate, being ineligible as an importer. 


APPENDIX 


vii 


John G. Carlisle, 

Ky., 

appointed March 6, 1893. 

Lyman J. Gage, 

Ill., 

44 

March 4, 1897. 

Leslie M. Shaw, 

Iowa, 

44 

Jan. 7, 1902. 

George B. Cortelyou, 

N. Y., 

44 

Dec. 13, 1906. 

Franklin MacVeagh, 

Ill., 

44 

March 5, 1909. 

William G. McAdoo, 

N. Y., 

44 

March 5, 1913. 


Secretaries of War. 


Henry Knox, 

Mass., 

appointed 

Sept. 12, 1789. 

Timothy Pickering, 

Mass., 

u 

Jan. 2, 1796. 

James McHenry, 

Md., 

u 

.Tan 27, 1796. 

John Marshall, 

Va., 

u 

May 7, 1800 1 

Samuel Dexter, 

Mass., 

u 

May 13, 1800. 

Roger Griswold, 

Conn., 

it 

Feb. 3, 1801. 2 

Henry Dearborn, 

Mass., 

u 

March 5, 1801. 

William Eustis, 

Mass., 

u 

March 7, 1809. 

John Armstrong, 

N. Y., 

u 

Jan. 13, 1813. 

James Monroe, 

Va., 

u 

Sept. 27, 1814. 

William H. Crawford, 

Ga., 

u 

March 3, 1816. 

Isaac Shelby, 

Ky., 

u 

March 6, 1817. 3 

George Graham, ad int ., 

Va., 

u 

April 7, 1817. 

John C. Calhoun, 

S. C., 

it 

Oct. 8, 1817. 

James Barbour, 

Va., 

(( 

March 7, 1825. 

Peter B. Porter, 

N. Y., 

«< 

May 26, 1828 

John H. Eaton, 

Tenn., 

(( 

March 9, 1829. 

Lewis Cass, 

Mich., 

{( 

Aug. 1, 1831. 

Benjamin F. Butler, 

N. Y., 

<( 

March 3, 1837. 

Joel R. Poinsett, 

S. C., 

(( 

March 7, 1837. 

John Bell, 

Tenn., 

<< 

March 5, 1841. 

John McLean, 

Ohio, 

(( 

Sept. 13, 1841. 2 

John C. Spencer, 

N. Y , 

<( 

Oct. 12, 1841. 


> Action postponed by Senate Appointed Secretary of State May 13th. 
a Declined. 



Vlll APPENDIX 


James M. Porter, 

Penn., 

appointed March 8, 1843. 1 

William Wilkins, 

Penn., 

tt 

Feb. 15, 1844. 

William L. Marcy, 

N. Y., 

(< 

March 5, 1845. 

George W. Crawford, 

Ga., 

it 

March 8, 1849. 

Charles M. Conrad, 

La., 

<( 

Aug 15. 1850. 

Jefferson Davis, 

Miss., 

<< 

March 5, 1853. 

John B. Floyd, 

Va., 

a 

March 6, 1857. 

Joseph Holt, 

Ky., 

11 

Jan. 18, 1861. 

Simon Cameron, 

Penn., 

<< 

March 5, 1861. 

Edwin M. Stanton, 

Penn., 

a 

Jan. 15, 1862.* 

Ulysses S. Grant, ad int ., 

Ill., 

<( 

Aug. 12, 1867. 

Edwin M. Stanton, 

Penn., 

ii 

Jan. 13, 1868. 3 

John M. Schofield, 

Mo., 

u 

May 28, 1868. 

John A. Rawlins, 

Ill., 

a 

March 11, 1869. 

Wm. T. Sherman, ad int ., 

Ohio, 

u 

Sept. 9, 1869. 

William W. Belknap, 

Iowa, 

<( 

Oct. 25, 1869. 

Alphonso Taft, 

Ohio, 

(i 

March 8, 1876. 

J. Donald Cameron, 

Penn., 

(< 

May 22, 1876. 

George W. McCrary, 

Iowa, 

a 

March 12, 1877. 

Alexander Ramsey, 

Minn., 

it 

Dec. 10, 1879. 

Robert T. Lincoln, 

Ill., 

(< 

March 6, 1881. 

William C. Endicott, 

Mass., 

a 

March 6, 1885. 

Redfield Proctor, 

Vt., 

tc 

March 5, 1889. 

Stephen B. Elkins, 

W. Va., 

tt 

Dec. 22, 1891. 

Daniel S. Lamont, 

N. Y., 

tt 

March 6, 1893. 

Russell A. Alger, 

Mich., 

a 

March 5, 1897. 

Elihu Root, 

NY., 

tt 

Aug. 1, 1899 

William H. Taft, 

Ohio, 

n 

Jan. 4, 1904. 

Luke E. Wright, 

Tenn., 

tt 

July 1, 1908. 

Jacob McG. Dickinson, 

Tenn., 

a 

March 5, 1909. 

Henry L. Stimson, 

N. Y., 

tt 

May 12, 1911. 

Lindley M. Garrison, 

N. J., 

tt 

March 6, 1913. 

Newton D. Baker, 

Ohio, 

u 

March 9, 1916. 


1 Rejected by the Senate. 

* Suspended by President Johnson, August 12, 1867. 
8 Restored by the Senate. 



APPENDIX 


ix 


Attorneys-General. 


Edmund Randolph, 

Va., 

appointed Sept. 26, 1789. 

William Bradford, 

Penn., 

n 

Jan. 28, 1794. 

Charles Lee, 

Va., 

u 

Dec. 10, 1795. 

Theophilus Parsons, 

Mass., 

<< 

Feb. 20, 1801. 

Levi Lincoln, 

Mass., 

a 

March 5, 1801. 

Robert Smith, 

Md., 

u 

March 2, 1805. 

John Breckenridge, 

Ky., 

a 

Aug. 7, 1805. 

Caesar A. Rodney, 

Del., 

a 

Jan. 20, 1807. 

William Pinkney, 

Md., 

a 

Dec. 11, 1811. 

Richard Rush, 

Penn., 

tt 

Feb. 10, 1814. 

William Wirt, 

Va., 

tt 

Nov. 13, 1817. 

J. McPherson Berrien, 

Ga., 

a 

March 9, 1829. 

Roger B. Taney, 

Md., 

<( 

July 20, 1831. 

Benjamin F. Butler, 

N. Y., 

tt 

Nov. 15, 1833. 

Felix Grundy, 

Tenn., 

tt 

Sept. 1, 1838. 

Henry D. Gilpin, 

Penn., 

a 

Jan. 10, 1840. 

John J. Crittenden, 

Ky., 

tt 

March 5, 1841. 

Hugh S. Legare, 

S. C., 

it 

Sept. 13, 1841. 

John Nelson, 

Md., 

it 

July 1, 1843. 

John Y. Mason, 

Va., 

it 

March 5, 1845. 

Nathan Clifford, 

Maine, 

it 

Oct. 17, 1846 

Isaac Toucey, 

Conn., 

it 

June 21, 1848. 

Reverdy Johnson, 

Md., 

it 

March 7, 1849. 

John J. Crittenden, 

Ky., 

il 

July 20, 1850. 

Caleb Cushing, 

Mass., 

it 

March 7, 1853. 

Jeremiah S. Black, 

Penn., 

it 

March 6, 1857. 

Edwin M. Stanton, 

Penn., 

il 

Dec. 20, 1860. 

Edward Bates, 

Mo., 

it 

March 5, 1861. 

Titian J. Coffey, ad int , 

Pa., 

it 

June 22, 1863. 

James Speed, 

Ky., 

it 

Dec. 2, 1864. 

Henry Stanbery, 

Ohio, 

it 

July 23, 1866. 

William M. Evarts, 

N. Y., 

it 

July 15, 1868. 

E. R. Hoar, 

Mass., 

it 

March 5, 1869. 

Amos T. Ackerman, 

Ga., 

it 

June 23, 1870. 

George H. Williams, 

Oregon, 

it 

Dec. 14, 1871. 

Edwards Pierrepont, 

N. Y., 

it 

April 26, 1875. 


X 


APPENDIX 


Alphonso Taft, 

Ohio, 

appointed May 22, 1876. 

Charles Devens, 

Mass., 

41 

March 12, 1877. 

Wayne McVeagh, 

Penn., 

44 

March 5, 1881. 

Benjamin H. Brewster, 

Penn., 

44 

Dec. 19, 1881. 

Augustus H. Garland, 

Ark., 

44 

March 6, 1885. 

William H. H. Miller, 

Ind , 

44 

March 5, 1889. 

Richard Olney, 

Mass., 

44 

March 6, 1893. 

Judson Harmon, 

Ohio, 

44 

June 8, 1895. 

Joseph McKenna, 

Cal., 

44 

March 5, 1897. 

John W. Griggs, 

N. J., 

44 

Jan. 22, 1898. 

Philander C. Knox, 

Pa., 

(4 

April 5, 1901. 

William H. Moody, 

Mass., 

44 

July 1, 1904. 

Charles J. Bonaparte, 

Md., 

44 

Dec. 3, 1906. 

George W. Wickersham, 

N. Y., 

44 

March 5, 1909. 

James C. McReynolds, 

Tenn., 

44 

March 5, 1913. 

Thomas W. Gregory, 

Tex., 

44 

Aug. 29, 1914. 


Postmasters-General. 


Samuel Osgood, 

Mass., 

appointed 

Sept. 26, 1789 

Timothy Pickering, 

Mass., 

44 

Aug. 12, 1791. 

Joseph Habersham, 

Ga , 

44 

Feb. 25, 1795. 

Gideon Granger, 

Conn., 

U 

Nov. 28, 1801. 

Return J. Meigs, Jr., 

Ohio, 

u 

March 17, 1814. 

John McLean, 

Ohio, 

44 

June 26, 1823. 

William T. Barry, 

Ky., 

44 

March 9, 1829. 

Amos Kendall, 

Ky., 

44 

May 1, 1835. 

John M. Niles, 

Conn., 

44 

May 25, 1840. 

Francis Granger, 

N. Y., 

44 

March 6, 1841. 

Charles A. Wickliffe, 

Ky., 

44 

Sept. 13, 1841. 

Cave Johnson, 

Tenn., 

44 

March 5, 1845. 

Jacob Collamer, 

vt., 

44 

March 7, 1849. 

Nathan K. Hall, 

N. Y., 

44 

July 20, 1850. 

Samuel D. Hubbard, 

Conn., 

44 

Aug. 31, 1852. 

James Campbell, 

Penn., 

44 

March 7, 1853. 

Aaron Y. Brown, 

Tenn., 

44 

March 6, 1857. 



APPENDIX 


Joseph Holt, 

Ky., 

appointed March 14, 1859. 

Horatio King, 

Me., 

(< 

Feb. 12, 1861. 

Montgomery Blair, 

Md., 


March 5, 1861. 

William Dennison, 

Ohio, 

<( 

Sept. 24, 1864. 

Alexander W. Randall, 

Wis., 

(4 

July 25, 1866. 

John A. J. Creswell, 

Md., 

44 

March 5, 1869. 

James W. Marshall, 

N. J., 

44 

July 3, 1874. 

Marshall Jewell, 

Conn., 

44 

Aug 24, 1874. 

James M. Tyner, 

Ind., 

44 

July 12, 1876. 

David M. Key, 

Tenn., 

44 

March 12, 1877. 

Horace Maynard, 

Tenn., 

<4 

June 2, 1880. 

Thomas L. James, 

N. Y., 

44 

March 5. 1881. 

Timothy 0. Howe, 

Wis., 

44 

Dec. 20, 1881. 

Walter Q. Gresham, 

Ind., 

44 

April 4, 1883. 

Frank Hatton, 

Iowa, 

44 

Oct. 14, 1884. 

William F. Vilas, 

Wis., 

44 

March 6, 1885. 

Don M. Dickinson, 

Mich., 

44 

Jan 16, 1888. 

John Wanamaker, 

Pa., 

44 

March 5, 1889. 

Wilson S. Bissell, 

N. Y., 

44 

March 6, 1893. 

William L. Wilson, 

W. Va., 

44 

Feb. 28, 1895. 

James A. Gary, 

Md., 

44 

March 5, 1897 

Charles E. Smith, 

Pa., 

14 

April 21, 1898. 

Henry C. Payne, 

Wis., 

44 

Jan. 7, 1902. 

Robert J. Wynne, 

Pa., 

44 

Oct. 10, 1904. 

George B. Cortelyou, 

N. Y., 

44 

Marcli 6, 1905. 

George von L. Meyer, 

Mass., 

44 

Dec. 13, 1906. 

Frank H. Hitchcock, 

Mass., 

44 

March 5, 1909. 

Albert S. Burleson, 

Tex., 

44 

March 5, 1913. 


Secretaries oe tiie Navy 


George Cabot, 

Mass., 

appointed May 3, 1798 1 

Benjamin Stoddert, 

Md., 

44 

May 21, 1798. 

Robert Smith, 

Md., 

44 

July 15, 1801. 

Jacob Crowninshield, 

Mass., 

44 

March 2, 1805. 

Paul Hamilton, 

S C. f 

44 

March 7, 1809. 

William Jones, 

Penn., 

1 Declined. 

44 

Jan 12, 1813. 



APPEN'DTX 


xii 


B. W. Crowninshield, 

Mass., 

appointed Dec. 17, 1814, 

Smith Thompson, 

n. r., 

ti 

Nov. 9, 1818. 

John Rodgers, 

Md., 

tt 

Sept. 1, 1823J 

Samuel L. Southard, 

N. J., 

<« 

Sept. 16, 1823. 

John Branch, 

N. C., 

u 

March 9, 1829. 

Levi Woodbury, 

N. H., 

tt 

May 23, 1831. 

Mahlon Dickerson, 

N. J., 

it 

June 30, 1834. 

James K. Paulding, 

N. Y., 

it 

June 30, 1838, 

George E. Badger, 

N. C., 

it 

March 5, 1841. 

Abel P. Upshur, 

Va., 

it 

Sept. 13, 1841. 

David Hensbaw, 

Mass., 

it 

July 24, 1843. 

Thomas W. Gilmer, 

Va., 

it 

Feb. 15, 1844. 

John Y. Mason, 

Va., 

ti 

March 14, 1844. 

George Bancroft, 

Mass., 

it 

March 10, 1845. 

John Y. Mason, 

Va., 

tt 

Sept. 9, 1846. 

William B. Preston, 

Va., 

(t 

March 8, 1849. 

William A. Graham, 

N. C., 

ti 

July 22, 1850. 

John P. Kennedy, 

Md., 

ti 

July 22, 1852. 

James C. Dobbin, 

N. C., 

ft 

March 7, 1853. 

Isaac Toucey, 

Conn., 

ft 

March 6, 1857. 

Gideon Welles, 

Conn., 

it 

March 5, 1861. 

Adolph E. Borie, 

Penn., 

tt 

March 5, 1869. 

George M. Robeson, 

N. J., 

tt 

June 25, 1869. 

Richard W. Thompson, 

Ind., 

it 

March 12, 1877. 

Nathan Goff, 

W. Va., 

tt 

Jan. 6, 1881. 

William H. Hunt, 

La., 

tt 

March 5, 1881. 

William E Chandler, 

N. H., 

ft 

April 1, 1882. 

William C. Whitney, 

N. Y., 

tt 

March 6, 1885. 

Benj. F. Tracy, 

N. Y., 

tt 

March 5, 1889. 

Hilary A Herbert, 

Ala., 

tt 

March 6, 1893. 

John 1). Long, 

Mass., 

tt 

March 5, 1897. 

William H. Moody, 

Mass., 

tt 

April 29, 1902. 

Paul Morton, 

Ill., 

tt 

July 1, 1904. 

Charles J. Bonaparte, 

Md., 

tt 

July 1, 1905. 

Victor H. Metcalf, 

Cal., 

tt 

Dec. 3, 1906. 

Truman H. Newberry, 

Mich., 

ft 

Dec. 1, 1908. 

George von L. Meyer, 

Mass., 

ft 

March 5, 1909. 

Josephus Daniels, 

N. C., 

1 Declined. 

ft 

March 6, 1913. 



APPENDIX 


xiii 


Secretaries of the Interior. 


Thomas Ewing, 

Ohio, 

appointed March 7, 1849. 

Alexander H. H. Stuart, 

Va., 

it 

Sept. 12, 1850. 

Robert McClelland, 

Mich., 

tt 

March 7, 1853. 

Jacob Thompson, 

Miss., 

« 

March 6, 1857.* 

Caleb B. Smith, 

Ind , 

u 

March 5. 1861. 

John P Usher, 

Ind., 

u 

Jan. 8, 1863. 

James Harlan, 

Iowa, 

tt 

May 15, 1865. 

Orville H Browning, 

Ill., 

It 

July 27, 1866. 

Jacob D. Cox, 

Ohio, 

it 

March 5, 1869. 

Columbus Delano, 

Ohio, 

tt 

Nov. 1, 1870. 

Zachariah Chandler, 

Mich., 

tt 

Oct. 19, 1875. 

Carl Schurz, 

Mo., 

tt 

March 12, 1877. 

Samuel J. Kirkwood, 

Iowa, 

it 

March 5, 1881. 

Henry M. Teller, 

Col., 

il 

April 6, 1882. 

Lucius Q C. Lamar, 

Miss., 

(t 

March 6, 1885. 

William F. Vilas, 

Wis., 

it 

Jan. 16, 1888. 

John W. Noble, 

Mo., 

it 

March 5, 1889. 

Hoke Smith, 

Ga., 

it 

March 6, 1893. 

David R. Francis, 

Mo., 

it 

Aug. 24, 1896. 

Cornelius N. Bliss, 

N. Y., 

it 

March 5, 1897. 

Ethan Allen Hitchcock, 

Mo., 

it 

Dec. 21, 1898. 

James R. Garfield, 

Ohio, 

it 

Dec. 13, 1906. 

Richard A. Ballinger, 

Wash., 

it 

March 5, 1909. 

Walter L. Fisher, 

Ill., 

it 

March 7, 1911. 

Franklin K. Lane, 

Cal., 

it 

March 6, 1913. 


Resigned January 8,1881. 



xiv 


APPENDIX 


Secretaries of Agriculture. 


Norman J. Coleman, 



appointed Feb. 12, 1889. 

“ March 5, 1889. 

“ March 6, 1893. 

“ March 5, 1897. 

“ March 5, 1913. 


Jeremiah M. Rusk, 
J. Sterling Morton, 
James Wilson, 


David F. Houston, 


Secretaries of Commerce and Labor. 


George B. Cortelyou, 
Victor H. Metcalf, 
Oscar S. Straus, 
Charles Nagel, 


N. Y.. 
Cal., 
N. Y. 
Mo., 


appointed Feb. 16, 1903. 


July 1, 1904. 
Dec. 3, 1906. 
March 5, 1909. 


In 1913 the above Department was divided into the Depart¬ 
ment of Commerce and the Department of Labor. William C. 
Kedfield of New York was appointed Secretary of Commerce 
and William B. Wilson of Pennsylvania was appointed Secre¬ 
tary of Labor. 

For list of Chief Justices of the Supreme Court, see 
pages 353, 354. 

Associate Justices of the Supreme Court. 


John Rutledge, 
William Cushing, 
James Wilson, 

John Blair, 

Robert H. Harrison, 
James Iredell, 
Thomas Johnson, 
William Paterson, 
Samuel Chase, 

Bush rod Washington, 


S. C., 

Mass., 

Penn., 

Va., 

Md., 

N. C., 

Md., 



Term of Service. 

1789 to 1791J 
1789 to 1810. 2 
1789 to 1798.2 
1789 to 1796.1 

1789 to 1790.1 

1790 to 1799.2 

1791 to 1793.1 
1793 to 1806.2 
1796 to 1811.2 
1798 to 1829.2 


1 Resigned. 


* Died. 




APPENDIX 


XV 




Term 

of Service. 

Alfred Moore, 

N. C., 

1799 

to 

1804. 1 

William Johnson, 

S. C., 

1804 

to 

1834. 2 

Brockholst Livingston, 

N Y., 

1806 

to 

1823. 2 

Thomas Todd, 

Ky., 

1807 

to 

1826. 2 

Levi Lincoln, 

Mass., 

Declined. 

John Quincy Adams, 

Mass., 

Declined 

1 . 

Gabriel Duval, 

Md., 

1811 

to 

1835. 1 

Joseph Story, 

Mass., 

1811 

to 

1845. 2 

Smith Thompson, 

N. Y., 

1823 

to 

1843. 2 

Robert Trimble, 

Ky., 

1826 

to 

1828. 2 

John McLean, 

Ohio, 

1829 

to 

1861. 2 

Henry Baldwin, 

Penn., 

1830 

to 

1844. 2 

James M. Wayne, 

Ga., 

1835 

to 

1867. 2 

Philip P. Barbour, 

Va„ 

1836 

to 

1841. 2 

John Catron, 

Tenn., 

1837 

to 

1865. a 

William Smith, 

Ala., 

Declined. 

John McKinley, 

Ala., 

1837 

to 

1852. 2 

Peter V. Daniel, 

Va., 

1841 

to 

I860. 2 

Samuel Nelson, 

N. Y., 

1845 

to 

1872. 3 

Levi Woodbury, 

N. H., 

1845 

to 

1851.* 

Robert C. Grier, 

Penn., 

1846 

to 

1870. 3 

Benjamin R. Curtis, 

Mass., 

1851 

to 

1857. 1 

John A. Campbell, 

Ala., 

1853 

to 

1861. 1 

Nathan Clifford, 

Maine, 

1858 

to 

1881.* 

Noah H. Swayne, 

Ohio, 

1861 

to 

1881. 3 

Samuel F. Miller, 

Iowa, 

1862 

to 

1890.* 

David Davis, 

Ill., 

1862 

to 

1877. 1 

Stephen J. Field, 

Cal., 

1863 

to 

1897. 3 

William Strong, 

Penn., 

1870 

to 

1880. 8 

Joseph P. Bradley, 

N. J., 

1870 

to 

1892. 2 

Ward Hunt, 

N. Y., 

1872 

to 

1882. 4 

John M. Harlan, 

Ky., 

1877 

to 

1011.2 

William B. Woods, 

Ala., 

1880 

to 

3887. 2 

Stanley Matthews, 

Ohio, 

1881 

to 

1889.* 

Horace Gray, 

Mass., 

1881 

to 

1902. 3 

Samuel Blatchford, 

N . Y., 

1882 

to 

1893. 2 


1 Resigned. 

* Died. 

* Resigned, with salary continued. 

* Resigned, with salary continued by special act of Congress. 


XVI 



APPENDIX 




Term of Service. 

Lucius Q. C. Lamar, 

Miss., 

1888 to 1893.1 

David J. Brewer, 

Kan., 

1889 to 1910.1 

Henry B. Brown, 

Mich., 

1890 to 1906. 2 

George Shiras, Jr., 

Penn., 

1892 to 1903.2 

Howell E. Jackson, 

Tenn., 

1893 to 1895.1 

Edward D. White, 

La., 

1894 to 1910. 8 

Rufus W. Peckham, 

N. Y., 

1895 to 1909.1 

Joseph McKenna, 

Cal., 

1898 to - . 

Oliver W. Holmes, 

Mass., 

1902 to - . 

William R. Day, 

Ohio, 

1903 to - . 

William H. Moody, 

Mass., 

1906 to 1910.2 

Horace H. Lurton, 

Tenn., 

1910 to 1914.1 

Charles E. Hughes, 

N. Y., 

1910 to 1916.4 

Joseph R. Lamar, 

Ga., 

1910 to 1916.1 

Willis Van Devanter, 

Wyo., 

1910 to - . 

Mahlon Pitney, 

N. J., 

1912 to - . 

James C. McReynolds, 

Tenn., 

1914 to-. 

Louis D. Brandeis, 

Mass., 

1916 to -. 

John H. Clarke, 

Ohio, 

1916 to -. 


1 Died. 

3 Resigned, with salary oontinued. 
* Became Chief Justice. 

4 Resigned. 


THE DECLARATION OF INDEPENDENCE —1776 


In Congress, July 4, 1776. 

THE UNANIMOUS DECLARATION OF THE THIRTEEN UNITED STATES OF 

AMERICA 

When, in the course of human events, it becomes necessary for one 
people to dissolve the political bands which have connected them with 
another, and to assume, among the powers of the earth, the separate and 
equal station to which the laws of nature and of nature’s Qod entitle 
them, a decent respect to the opinions of mankind requires that they 
should declare the causes which impel them to the separation. 

We hold these truths to be self-evident: that all men are created 
equal; that they are endowed by their Creator with certain unalienable 
rights; that among these are life, liberty, and the pursuit of happiness. 
That, to secure these rights, governments are instituted among men, 
deriving their just powers from the consent of the governed ; that, when¬ 
ever any form of government becomes destructive of these ends, it is the 
right of the people to alter or to abolish it, and to institute new govern¬ 
ment, laying its foundation on such principles, and organizing its powers 
in such form, as to them shall seem most likely to effect their safety and 
happiness. Prudence, indeed, will dictate that governments long estab¬ 
lished, should not be changed for light and transient causes; and, ac- 
^ cordingly, all experience hath shown, that mankind are more disposed to 
' suffer, while evils are sufferable, than to right themselves by abolishing 
the forms to which they are accustomed. But, when a long train of 
abuses and usurpations, pursuing invariably the same object, evinces a 
design to reduce them under absolute despotism, it is their right, it is 
their duty, to throw off such government, and to provide new guards for 
their future security. — Such has been the patient sufferance of these 
colonies; and such is now the necessity which constrains them to alter 
their former systems of government. The history of the present king 
of Great Britain is a history of repeated injuries and usurpations, all hav- 

xvii 



xviii 


THE DECLARATION OF INDEPENDENCE 


ing in direct object the establishment of an absolute tyranny over these 
States. To prove this, let facts be submitted to a candid world. 

He has refused his assent to laws the most wholesome and necessary 
for the public good. 

He has forbidden his governors to pass laws of immediate and pressing 
importance, unless suspended in their operation till his assent should be 
obtained ; and, when so suspended, he has utterly neglected to attend to 
them. 

He has refused to pass other laws for the accommodation of large dis¬ 
tricts of people, unless those people would relinquish the right of repre¬ 
sentation in the legislature, a right inestimable to them and formidable 
to tyrants only. 

He has called together legislative bodies at places unusual, uncomfort¬ 
able, and distant from the depository of their public records, for the sole 
purpose of fatiguing them into compliance with his measures. 

He has dissolved representative houses repeatedly, for opposing, with 
manly firmness, his invasions on the rights of the people. 

He has refused, for a long time after such dissolutions, to cause others 
to be elected ; whereby the legislative powers, incapable of annihilation, 
have returned to the people at large for their exercise ; the State remain¬ 
ing, in the meantime, exposed to all the dangers of invasion from with¬ 
out, and convulsions within. 

He has endeavored to prevent the population of these States ; for that 
purpose obstructing the laws for naturalization of foreigners ; refusing to 
pass others to encourage their migration hither, and raising the conditions 
of new appropriations of lands. 

He has obstructed the administration of justice, by refusing his assent 
to laws for establishing judiciary powers. 

He has made judges dependent on his will alone for the tenure of their 
offices, and the amount and payment of their salaries. 

He has erected a multitude of new offices, and sent hither swarms of 
officers to harass our people, and eat out their substance. 

He has kept among us in times of peace, standing armies, without the. 
consent of our legislature. 

He has affected to render the military independent of, and superior to, 
the civil power. 

He has combined, with others, to subject us to a jurisdiction foreign 
to our constitution, and unacknowledged by our laws; giving his assent 
to their acts of pretended legislation : 

For quartering large bodies of armed troops among us : 

For protecting them, by a mock trial, from punishment for any mur¬ 
ders which they should commit on the inhabitants of these States: 


THE DECLARATION OF INDEPENDENCE 


xix 


For cutting off our trade with all parts of the world: 

For imposing taxes on us without our consent: 

For depriving us, in many cases, of the benefits of trial by jury: 

For transporting us beyond seas to be tried for pretended offenses: 

For abolishing the free system of English laws in a neighboring prov¬ 
ince, establishing therein an arbitrary government and enlarging its 
boundaries, so as to render it at once an example and fit instrument for 
introducing the same absolute rule into these colonies : 

For taking away our charters, abolishing our most valuable laws, and 
altering, fundamentally, the forms of our governments: 

For suspending our own legislatures, and declaring themselves invested 
with power to legislate for us in all cases whatsoever. 

He has abdicated government here by declaring us out of his protec¬ 
tion, and waging war against us. 

He has plundered our seas, ravaged our coasts, burnt our towns, and 
destroyed the lives of our people. 

lie is, at this time, transporting large armies of foreign mercenaries 
to complete the works of death, desolation, and tyranny, already begun, 
with circumstances of cruelty and perfidy scarcely paralleled in the most 
barbarous ages, and totally unworthy the head of a civilized nation. 

He has constrained our fellow-citizens, taken captive on the high seas, 
to bear arms against their country, to become the executioners of their 
friends and brethren, or to fall themselves by their hands. 

He has excited domestic insurrections amongst us, and has endeavored 
to bring on the inhabitants of our frontiers, the merciless Indian savages, 
whose known rule of warfare is an undistinguished destruction of all ages, 
sexes, and conditions. 

In every stage of these oppressions, we have petitioned for redress in 
the most humble terms: our repeated petitions have been answered only 
by repeated injury. A prince, whose character is thus marked by every 
act which may define a tyrant, is unfit to be the ruler of a free people. 

Nor have we been wanting in attention to our British brethren. We 
have warned them, from time to time, of attempts by their legislature to 
extend an unwarrantable jurisdiction over us. We have reminded them 
of the circumstances of our emigration and settlement here. We have 
appealed to their native justice and magnanimity, and we have conjured 
them, by the ties of our common kindred, to disavow these usurpations, 
which would inevitably interrupt our connections and correspondence. 
They too have been deaf to the voice of justice and consanguinity. We 
must, therefore, acquiesce in the necessity which denounces our separa¬ 
tion, and hold them, as we hold the rest of mankind, enemies in war, in 
peace friends. 


XX 


THE DECLARATION OF INDEPENDENCE 


We, therefore, the representatives of the United States of America, in 
general Congress assembled, appealing to the Supreme Judge of the world 
for the rectitude of our intentions, do, in the name, and by authority of 
the good people of these colonies, solemnly publish and declare, That 
these United Colonies are, and of right ought to be, free and independent 
States; that they are absolved from all allegiance to the British crown, 
and that all political connection between them and the state of Great 
Britain is, and ought to be, totally dissolved ; and that, as free and inde¬ 
pendent States, they have full power to levy war, conclude peace, con¬ 
tract alliances, establish commerce, and to do all other acts and things 
which independent States may of right do. And for the support of this 
declaration, with a firm reliance on the protection of Divine Providence, 
we mutually pledge to each other our lives, our fortunes, and our sacred 
honor. John Hancock. 


New Hampshire 
Josiah Bartlett, 

Wm. Whipple, 
Matthew Thornton. 

Massachusetts Bay 
Sami. Adams, 

John Adams, 

Robt. Treat Paine, 
Elbridge Gerry. 

Bhode Island 
Step. Hopkins, 
William Ellery. 

Connecticut 
Roger Sherman, 
Sam’el Huntington, 
Wm. Williams, 
Oliver Wolcott. 

New York 
Wm. Floyd, 

Phil. Livingston, 
Frans. Lewis, 

Lewis Morris. 


New Jersey 
Richd. Stockton, 
Jno. Witherspoon, 
Fras. Hopkinson, 
John Hart, 

Abra. Clark. 

Pennsylvania 
Robt. Morris, 
Benjamin Rush, 
Benja. Franklin, 
John Morton, 

Geo. Clymer, 

Jas. Smith, 

Geo. Taylor, 
James Wilson, 
Geo. Ross. 

Delaware 
Caesar Rodney, 
Geo. Read, 

Tho. M’Kean. 

Maryland 
Samuel Chase, 
Wm. Paca, 

Thos. Stone, 


Charles Carroll of Car¬ 
rollton. 

Virginia 
George Wythe, 

Richard Henry Lee, 

Th Jefferson, 

Benja. Harrison, 

Thos. Nelson, jr., 
Francis Lightfoot Lee, 
Carter Braxton. 

North Carolina 
Wm. Hooper, 

Joseph Hewes, 

John Penn. 

South Carolina 
Edward Rutledge, 
Thos. Heyward, Junr., 
Thomas Lynch, Junr., 
Arthur Middleton. 

Georgia 

Button Gwinnett, 
Lyman Hall, 

Geo. Walton. 


ARTICLES OF CONFEDERATION 


Articles of Confederation and Perpetual Union between the 
States of New Hampshire, Massachusetts Bay, Rhode Island 
and Providence Plantations, Connecticut, New York, New 
Jersey, Pennsylvania, Delaware, Maryland, Virginia, North 
Carolina, South Carolina, and Georgia 

Article I.—The style of this confederacy shall be, “The United 
States of America.” 

Art. II. — Each State retains its sovereignty, freedom, and independ¬ 
ence, and every power, jurisdiction, and right which is not by this con¬ 
federation expressly delegated to the United States in Congress assembled. 

Art. III. — The said States hereby severally enter into a firm league of 
friendship with each other, for their common defense, the security of their 
liberties, and their mutual and general welfare, binding themselves to 
assist each other against all force offered to, or attacks made upon them, 
or any of them, on account of religion, sovereignty, trade, or any other 
pretense whatever 

Art. IV. — The better to secure and perpetuate mutual friendship and 
intercourse among the people of the different States in this Union, the 
free inhabitants of each of these States, paupers, vagabonds, and fugitives 
from justice excepted, shall be entitled to all privileges and immunities of 
free citizens in the several States ; aud the people of each State shall 
have free ingress and regress to and from any other State, and shall enjoy 
therein all the privileges of trade and commerce, subject to the same 
duties, impositions, and restrictions, as the inhabitants thereof respec¬ 
tively; provided that such restrictions shall not extend so far as to prevent i 
the removal of property imported into any State, to any other State of 
which the owner is an inhabitant ; provided, also, that no imposition, 
duties, or restriction, shall be laid by any State on the property of the 
United States or either of them. 

If any person guilty of, or charged with, treason, felony, or other high 
misdemeanor in any State, shall flee from justice, and be found in any of 
the United States, he shall, upon demand of the governor or executive 
power of the State from which he fled, be delivered up, and removed to 
the State having jurisdiction of his offense. 

Full faith and credit shall be given, in each of these States, to the 
records, acts, and judicial proceedings of the courts and magistrates of 
every other State. 

Art. V.—For the more convenient management of the general inter¬ 
ests of the United States, delegates shall be annually appointed in such 


zxi 



XXII 


ARTICLES OF CONFEDERATION 


manner as the legislature of each State shall direct, to meet in Congress 
on the first Monday in November, in every year, with a power reserved to 
each State to recall its delegates, or any of them, at any time within the 
year, and to send others in their stead for the remainder of the year 

No State shall he represented in Congress by less than two, nor by 
more than seven members ; and no person shall be capable of being a del¬ 
egate for more than three years, in any term of six years ; nor shall any 
person, being a delegate, be capable of holding any office under the 
United States, for which he, or another for his benefit, receives any salary, 
fees, or emolument of any kind. 

Each State shall maintain its own delegates in any meeting of the 
States and while they act as members of the committee of the States. 

' In determining questions in the United States in Congress assembled, 
each State shall have one vote 

Freedom of speech and debate in Congress shall not be impeached or 
questioned in any court or place out of Congress ; and the members of 
Congress shall be protected in their persons from arrests and imprison¬ 
ments during the time of their going to and from, and attendance on 
Congress, except for treason, felony, or breach of the peace. 

Art. VI.—No State, without the consent of the United States, in 
Congress assembled, shall send any embassy to, or receive any embassy 
from, or enter into any conference, agreement, alliance, or treaty, with 
any king, prince, or state ; nor shall any person holding any office of 
profit or trust under the United States, or any of them, accept of any pres¬ 
ent, emolument, office, or title of any kind whatever, from any king, 
prince, or foreign state ; nor shall the United States, in Congress assem¬ 
bled, or any of them, grant any title of nobility. 

No two or more States shall enter into any treaty, confederation, or 
alliance whatever between them, without the consent of the United 
States, in Congress assembled, specifying accurately the purposes for 
which the same is to be entered into, and how long it shall continue. 

No States shall lay any imposts or duties which may interfere with 
any stipulations in treaties entered into by the United States, in Congress 
assembled, with any king, prince, or state, in pursuance of any treaties 
already proposed by Congress to the courts of France and Spain. 

No vessels of war shall be kept up in time of peace, by any State, except 
such number only as shall be deemed necessary, by the United States in 
(Congress assembled, for the defense of such State or its trade; nor shall 
any body of forces be kept up, by any State, in time of peace, except such 
number only as, in the judgment of the United States, in Congress as¬ 
sembled, shall be deemed requisite to garrison the forts necessary for the 
defense of such State; but every State shall always keep up a well regu¬ 
lated and disciplined militia, sufficiently armed and accoutred, and shall 
provide and constantly have ready for use, in public stores, a due number 
of field-pieces and tents, and a proper quantity of arms, ammunition, and 
camp equipage. 

No State shall engage in any war without the consent of the United 
States, in Congress assembled, unless such State be actually invaded by 
enemies, or shall have received certain advice of a resolution being 
formed by some nation of Indians to invade such State, and the danger 
is so imminent as not to admit of a delay till the United States, in Congress 
assembled, can be consulted; nor shall any State grant commissions to 


ARTICLES OF CONFEDERATION XXiii 

any ships or vessels of war, nor letters of marque or reprisal, except it be 
after a declaration of war by the United States, in Congress assembled, 
and then only against the kingdom or state, and the subjects thereof 
against which war has been so declared, and under such regulations as 
shall be established by the United States, in Congress assembled, unless 
such State be infested by pirates, in which case vessels of war may be fit¬ 
ted out for that occasion, and kept so long as the danger shall continue, or 
until the United States, in Congress assembled, shall determine otherwise. 

Art. VII.—When land forces are raised by any State for the common 
.defense, all officers of or under the rank of colonel, shall be appointed by 
the legislature of each State respectively by whom such forces shall be 
raised, or in such manner as such State shall direct, and all vacancies 
shall be filled up by the State which first made the appointment. 

Art. VIII.—All charges of war, and all other expenses that shall be 
incurred for the common defense or general welfare, and allowed by the 
United States in Congress assembled, shall be defrayed out of a common 
treasury, which shall be supplied by the several States, in proportion to 
the value of all land within each State, granted to, or surveyed for, any 
person, as such land and the buildings and improvements thereon shall be 
estimated according to such mode as the United States, in Congress assem¬ 
bled, shall, from time to time, direct and appoint. The taxes for paying 
that proportion shall be laid and levied by the authority and direction of 
the legislatures of the several States, within the time agreed upon by the 
United States, in Congress assembled. 

Art. IX.—The United States, in Congress assembled, shall have the 
sole and exclusive right and power of determining on peace and war, ex¬ 
cept in the cases mentioned in the sixth Article; of sending and receiving 
ambassadors; entering into treaties and alliances, provided that no treaty 
of commerce shall be made whereby the legislative power of the re¬ 
spective States shall be restrained from imposing such imposts and duties 
on foreigners, as their own people are subjected to, or from prohibiting the 
exportation or importation of any species of goods or commodities what¬ 
soever; of establishing rules for deciding, in all cases, what captures on 
land or water shall be legal, and in what manner prizes taken by land or 
naval forces in the service of the United States, shall be divided or appro¬ 
priated; of granting letters of marque and reprisal in times of peace; 
appointing courts for the trial of piracies and felonies committed on the 
high seas; and establishing courts for receiving and determining finally 
appeals in all cases of captures; provided that no member of Congress 
shall be appointed a judge of any of the said courts. 

The United States, in Congress assembled, shall also be the last resort 
on appeal, in all disputes and differences now subsisting, or that hereafter 
may arise between two or more States concerning boundary, jurisdiction, 
or any other cause whatever; which authority shall always be exercised 
in the manner following : Whenever the legislative or executive authority, 
or lawful agent of any State in controversy with another, shall present a 
petition to Congress, stating the matter in question, and praying for a 
hearing, notice thereof shall be given by order of Congress, to the legisla¬ 
tive or executive authority of the other State in controversy, and a day 
assigned for the appearance of the parties by their lawful agents, who 
shall then be directed to appoint, by joint consent, commissioners or 
judges to constitute a court for hearing and determining the matter in 


XXIV 


ARTICLES OF CONFEDERATION 


question; but if they can not agree, Congress shall name three persons 
out of each of the United States, and from the list of such persons each 
party shall alternately strike out one, the petitioners beginning, until 
the number shall be reduced to thirteen; and from that number not less 
than seven nor more than nine names, as Congress shall direct, shall, in 
the presence of Congress, be drawn out by lot; and the persons whose 
names shall be so drawn, or any five of them, shall be commissioners or 
judges, to hear and finally determine the controversy, so always as a major 
part of the judges, who shall hear the cause, shall agree in the determina¬ 
tion ; and if either party shall neglect to attend at the day appointed 
without showing reasons which Congress shall judge sufficient, or being 
present, shall refuse to strike, the Congress shall proceed to nominate 
three persons out of each State, and the secretary of Congress shall strike 
in behalf of such party absent or refusing; and the judgment and sen¬ 
tence of the court, to be appointed in the manner before prescribed, shall 
be*final and conclusive; and if any of the parties shall refuse to submit 
to the authority of such court, or to appear or defend their claim or 
cause, the court shall nevertheless proceed to pronounce sentence or judg¬ 
ment, which shall in like manner be final and decisive; the judgment or 
sentence and other proceedings being in either case transmitted to Con¬ 
gress, and lodged among the acts of Congress for the security of the 
parties concerned; provided, that every commissioner, before he sits in 
judgment, shall take an oath, to be administered by one of the judges of 
the supreme or superior court of the State where the cause shall be tried, 
“ well and truly to hear and determine the matter in question, according 
to the best of his judgment, without favor, affection, or hope of reward.” 
Provided, also, that no State shall be deprived of territory for the benefit 
of the United States. 

All controversies concerning the private right of soil claimed under 
different grants of two or more States, whose jurisdictions, as they may 
respect such lands, and the States which passed such grants are adjusted, 
the said grants or either of them being at the same time claimed to have 
originated antecedent to such settlement of jurisdiction, shall, on the peti¬ 
tion of either party to the Congress of the United States, be finally deter¬ 
mined, as near as may be, in the same manner as is before prescribed for 
deciding disputes respecting territorial jurisdiction between different 
States. 

The United States, in Congress assembled, shall also have the sole and 
exclusive right and power of regulating the alloy and value of coin struck 
by their own authority, or by that of the respective States ; fixing the 
standard of weights and measures throughout the United States ; regulat¬ 
ing the trade and managing all affairs with the Indians not members of 
any of the States ; provided that the legislative right of any State, within 
its own limits, be not infringed or violated; establishing and regulating 
post offices from one State to another throughout all the United States, 
and exacting such postage on the papers passing through the same, as 
may be requisite to defray the expenses of the said office ; appointing all 
officers of the land forces in the service of the United States, excepting 
regimental officers ; appointing all the officers of the naval forces, and 
commissioning all officers whatever in the service of the United States; 
making rules for the government and regulation of the said land and 
naval forces, and directing their operations. 


ARTICLES OF COKFEDERATItXN 


XXV 


The United States, in Congress assembled, shall have authority to ap¬ 
point a committee, to sit in the recess of Congress, to be denominated 
“A Committee of the States,” and to consist of one delegate from each 
State ; and to appoint such other committees and civil officers as may be 
necessary for managing the general affairs of the United States under 
their direction ; to appoint one of their number to preside, provided that 
no person be allowed to serve in the office of president more than one 
year in any term of three years ; to ascertain the necessary sums of 
money to be raised for the service of the United States, afad to appropriate 
and apply the same for defraying the public expenses ; to borrow money 
or emit bills on the credit of the United States, transmitting every hal; 
year to the respective States an account of the sums of money so bor¬ 
rowed or emitted ; to build and equip a navy ; to agree upon the number 
of land forces, and to make requisitions from each State for its quota, in 
proportion to the number of white inhabitants in such State, which requisi¬ 
tion shall be binding ; and thereupon the Legislature of each State shall 
appoint the regimental officers, raise the men, and clothe, arm, and equip 
them in a soldier-like manner at the expense of the United States; and 
the officers and men so clothed, armed, and equipped shall march to the 
place appointed, and within the time agreed on by the United States, in 
Congress assembled ; but if the United States, in Congress assembled, 
shall, on consideration of circumstances, judge proper that any State 
should not raise men, or should raise a smaller number than its quota, and 
that any other State should raise a greater number of men than the quota 
thereof, such extra number shall be raised, officered, clothed, armed, and 
equipped in the same manner as the quota of such State, unless the Leg¬ 
islature of such State shall judge that such extra number can not be 
safely spared out of the same, in which case they shall raise, officer, 
clothe, arm, and equip as many of such extra number as they judge can 
be safely spared, and the officers and men so clothed, armed, and equipped 
shall march to the place appointed, and within the time agreed on by the 
United States, in Congress assembled. 

The United States, in Congress assembled, shall never engage in a war, 
nor grant letters of marque and reprisal in time of peace, nor enter into 
any treatise or alliances, nor coin money, nor regulate the value thereof, 
nor ascertain the sums and expenses necessary for the defense and welfare 
of the United States, or any of them, nor emit bills, nor borrow money 
on the credit of the United States, nor appropriate money, nor agree upon 
the number of vessels of war to be built or purchased, or the number of 
land or sea forces to be raised, nor appoint a commander-in-chief of the 
army or navy, unless nine States assent to the same, nor shall a question 
on any other point, except for adjourning from day today, be determined, 
unless by the votes of a majority of the United States, in Congress assem¬ 
bled. 

The Congress of the United States shall have power to adjourn to any 
time within the year, and to any place within the United States, so that 
no period of adjournment be for a longer duration than the space of six 
months, and shall publish the journal of their proceedings monthly, ex¬ 
cept such parts thereof relating to treaties, alliances, or military opera¬ 
tions as in their judgment require secrecy; and the yeas and nays of the 
delegates of each State, on any question, shall be entered on the journal 
when it is desired by any delegate; and the delegates of a State, or any of 
A. C.—26 


XXVI 


ARTICLES OF CONFEDERATION 


them, at his or their request, shall be furnished with a transcript of the 
Said journal, except such parts as are above excepted, to lay before the 
legislatures of the several States. 

Art. X.—The committee of the States, or any nine of them, shall be 
authorized to execute, in the recess of Congress, such of the powers of 
Congress as the United States, in Congress assembled, by the consent of 
nine States, shall, from time to time, think expedient to vest them with; 
provided that no power be delegated to the said committee, for the exer¬ 
cise of which, by the articles of confederation, the voice of nine States, 
,in the Congress of the United States assembled, is requisite. 

Art. XI.—Canada acceding to this confederation, and joining in the 
measures of the United States, shall be admitted into, and entitled to all 
the advantages of this Union; but no other colony shall be admitted into 
the same unless such admission be agreed to by nine States. 

Art. XII.—All bills of credit emitted, moneys borrowed, and debts 
contracted by or under the authority of Congress, before the assembling 
of the United States, in pursuance of the present confederation, shall be 
deemed and considered as a charge against the United States, for pay¬ 
ment and satisfaction whereof the said United States and the public faith 
are hereby solemnly pledged. 

Art. XIII.—Every State shall abide by the determinations of the United 
States, in Congress assembled, on all questions which by this Confedera¬ 
tion are submitted to them. And the Articles of this Confederation Bhall 
be inviolably observed by every State, and the Union shall be perpetual; 
nor shall any alteration at any time hereafter be made in any of them, 
unless such alteration be agreed to in a Congress of the United States, 
and be afterward confirmed by the legislatures of every State. 

And whereas it hath pleased the great Governor of the world to incline 
the hearts of the legislatures we respectively represent in Congress, to 
approve of, and to authorize us to ratify the said Articles of Confedera¬ 
tion and perpetual Union, Know ye, that we, the undersigned delegates, 
by virtue of the power and authority to us given for that purpose, do, by 
these presents, in the name and in behalf of our respective constituents, 
fully and entirely ratify and confirm each and every of the said Articles of 
Confederation and perpetual Union, and all and singular the matters and 
things therein contained. And we do further solemnly plight and engage 
the faith of our respective constituents, that they shall abide by the deter¬ 
minations of the United States, in Congress assembled, on all questions 
which by the said Confederation are submitted to them; and that the 
Articles thereof shall be inviolably observed by the States we respectively 
represent, and that the Union shall be perpetual. In witness whereof, we 
have hereunto set our hands in Congress. Done at Philadelphia, in the 
State of Pennsylvania, the ninth day of July, in the year of our Lord 
1778,* and in the third year of the Independence of America. 

* Only ten States took action npon the Articles at this time. New Jersey, Delaware, 
and Maryland did not ratify them until later. 


ORDINANCE OF 1787 

July 13, 1787 


An Ordinance for the Government of th£ Territory of the 
United States, North-west of the River Ohio 

Be it ordained , by the United States, in Congress assembled, that the 
said Territory, for the purposes of temporary government, be one district; 
subject, however, to be divided into two districts, as future circumstances 
may, in the opinion of Congress, make it expedient. 

Be it ordained , by the authority aforesaid, that the estates, both of resi¬ 
dent and non-resident proprietors in the said Territory, dying intestate, 
shall descend to, and be distributed among, their children, and the de¬ 
scendants of a deceased child, in equal parts; the descendants of a de¬ 
ceased child, or grandchild, to take the share of their deceased parent, in 
equal parts, among them; and where there shall be no children or de¬ 
scendants, then in equal parts to the next of kin, in equal degree; and 
among collaterals, the children of a deceased brother or sister of the 
intestate, shall have, in equal parts, among them, their deceased parent’s 
share; and there shall in no case be a distinction between kindred of the 
whole and half blood; saving in all cases to the widow of the intestate, 
her third part of the real estate for life, and one-third part of the personal 
estate; and this law relative to descents and dower, shall remain in 
full force until altered by the legislature of the district. And until the 
governor and judges shall adopt laws as hereinafter mentioned, estates in 
the said Territory may be devised or bequeathed by wills in writing, signed 
and sealed bv him or her, in whom the estate may be (being of full age), 
and attested by three witnesses, and real estates may be conveyed by lease 
and release, or bargain and sale, signed, sealed, and delivered by the per¬ 
son, being of full ag“, in whom the estate may be. and attested by two 
witnesses, provided such wills be duly proved, and such conveyances be 
acknowledged, or the execution thereof duly proved, and be recorded 
within one year after proper magistrates, courts, and registers shall be ap¬ 
pointed for that purpose; and personal property may be transferred by 
delivery, saving, however, to the French and Canadian inhabitants, and 
other settlers of the Kaskaskias, Saint Vincents, and the neighboring vil¬ 
lages, who have heretofore professed themselves citizens of Virginia, their 
laws and customs now in force among them, relative to descent and con¬ 
veyance of property. 

Be it ordained , by the authority aforesaid, that there shall be appointed 
from time to time, by Congress, a governor, whose commission shall con- 

xxvii 



xxviii 


ORDISTAtfCE OF 1787 


tinue in force for the terra of three years, unless sooner revoked by Con¬ 
gress; he shall reside in the district, and have a freehold estate therein, in 
one thousand acres of land, while in the exercise of his office. There shall 
be appointed from time to time, by Congress, a secretary, whose commis¬ 
sion shall continue in force for four years, unless sooner revoked; he 
shall reside in the district, and have a freehold estate therein, in five hun¬ 
dred acres of land, while in the exercise of his office; it shall be his duty 
to keep and preserve the acts and laws passed by the legislature, and the 
public records of the district, and the proceedings of the governor in his 
executive department; and transmit authentic copies of such acts and pro¬ 
ceedings, every six months, to the secretary of Congress. There shall also/ 
be appointed a court, to consist of three judges, any two of whom to form* 
a court, who shall have a common law jurisdiction, and reside in the 
district, and have each therein a freehold estate, in five hundred acres of 
land, while in the exercise of their offices; and their commissions shall con¬ 
tinue in force during good behavior. 

The governor and judges, or a majority of them, shall adopt and pub¬ 
lish in the district, such laws of the original States, criminal and civil, as 
may be necessary, and best suited to the circumstances of the district, and 
report them to Congress, from time to time, which laws shall be in force 
in the district until the organization of the general assembly therein, un¬ 
less disapproved of by Congress; but afterwards, the legislature shall 
have authority to alter them as they shall think fit. 

The governor for the time being, shall be commander-in-chief of the 
militia, appoint and commission all officers in the same, below the rank of 
general officers. All general officers shall be appointed and commissioned 
by Congress. 

Previous to the organization of the general assembly, the governor shall 
appoint such magistrates and other civil officers, in each county or town¬ 
ship. as he shall find necessary for the preservation of the peace and good 
order in the same. After the general assembly shall be organized, the 
powers and duties of magistrates and other civil officers shall be regulated 
and defined by the said assembly; but all magistrates and other civil of¬ 
ficers, not herein otherwise directed, shall, during the continuance of this 
temporary government, be appointed by the governor. 

For the prevention of crimes and injuries, the laws to be adopted or 
made shall have force in all parts of the district, and for the execution 
of process criminal and civil, the governor shall make proper divisions 
thereof; and he shall proceed from time to time, as circumstances may 
require, to lay out the parts of the district in which the Indian titles shall 
have been extinguished, into counties and townships, subject, however, to 
such alterations as may thereafter be made by the legislature. 

So soon as there shall be five thousand free male inhabitants, of full 
age, in the district, upon giving proof thereof to the governor, they shall 
receive authority, with time and place, to elect representatives from their 
counties or townships, to represent them in the general assembly ; provided , 
that for every five hundred free male inhabitants there shall be one repre¬ 
sentative, and so on progressively with the number of free male inhabitants, 
shall the right of representation increase, until the number of representa¬ 
tives, shall amount to twenty-five, after which the number and propor¬ 
tion of representatives shall be regulated by the legislature; provided , 
that no person be eligible or qualified to act as a representative, unless he 


ORDINANCE OF 1787 


xxix 

shall have been a citizen of one of the United States three years, and be a 
resident in the district, or unless he shall have resided in the district three 
years, and in either case shall likewise hold in his own right, in fee simple, 
two hundred acres of land within the same; provided, also, that a freehold 
in fifty acres of land in the district, having been a citizen of one of the 
States, and being resident in the district, or the like freehold and two 
years’ residence in the district, shall be necessary to qualify a man as an 
elector of a representative. 

The representatives thus elected, shall serve for the term of two years, 
and in case of the death of a representative, or removal from office, the 
governor shall issue a writ to the county or township for which he was a 
member, to elect another in his stead, to serve for the residue of the term. 

The general assembly, or legislature, shall consist of the governor, 
legislative council, and a house of representatives. The legislative coun¬ 
cil shall consist of five members, to continue in office for five years, unless 
sooner removed by Congress, any three of whom to be a quorum, and 
the members of the council shall be nominated and appointed in the fol¬ 
lowing manner; to-wit, as soon as representatives shall be elected, the 
governor shall appoint a time and place for them to meet together, and 
when met, they shall nominate ten persons, residents in the district, and 
each possessed of a freehold in five hundred acres of land, and return 
their names to Congress; five of whom Congress shall appoint and com¬ 
mission to serve as aforesaid; and whenever a vacancy shall happen in 
the council, by death or removal from office, the house of representatives 
shall nominate two persons, qualified as aforesaid, for each vacancy, and 
return their names to Congress, one of whom Congress shall appoint and 
commission for the residue of the term; and every five years, four months 
at least before the expiration of the time of service of the members of 
council, the said house shall nominate ten persons, qualified as aforesaid, 
and return their names to Congress, five of whom Congress shall appoint 
and commission to serve as members of the council five years, unless 
sooner removed. 

And the governor, legislative council, and house of representatives 
shall have authority to make laws in all cases for the good government of 
the district, not repugnant to the principles and articles in this ordinance 
established and declared. And all bills having passed by a majority in 
the house, and by a majority in the council, shall be referred to the gov¬ 
ernor for his assent; but no bill or legislative act whatever shall be of 
any force without his assent. The governor shall have power to convene, 

, prorogue, and dissolve the general assembly, when in his opinion it shall 
be expedient. 

The governor, judges, legislative council, secretary, and such other 
officers as Congress shall appoint in the district, shall take an oath or 
affirmation of fidelity, and of office—the governor before the president of 
Congress, and all other officers before the governor. As soon as a legis¬ 
lature shall be formed in the district, the council and house, assembled in 
one room, shall have authority, by joint ballot, to elect a delegate to Con¬ 
gress, who shall have a seat in Congress, with a right of debating, but not 
of voting, during this temporary government. 

And for extending the fundamental principles of civil and religious 
liberty, which form the basis whereon these republics, their laws and 
constitutions, are erected; to fix and establish those principles as the basis 


xxx 


ORDINANCE OF 1787 


of all laws, constitutions, and governments, which forever hereafter shall 
be formed in the said Territory; to provide also for the establishment of 
States, and permanent government therein, and for their admission to a 
share in the federal councils on an equal footing with the original States, 
at as early periods as may be consistent with the general interest 

It is hereby ordained and declared , by the authority aforesaid, that the 
following articles shall be considered as articles of compact between the 
original States and the people and States in the said Territory, and for¬ 
ever remain unalterable, unless by common consent, to-wit: 

Art. I. —No person demeaning himself in a peaceable and orderly man¬ 
ner, shall ever be molested on account of his mode of worship or religious 
sentiments in the said Territory. 

Art. II.—The inhabitants of the said Territory shall always be entitled 
to the benefit of the writ of habeas corpus , and of trial by jury; of a pro¬ 
portionate representation of the people in the legislature, and of judicial 
proceedings according to the course of the common law. All persons 
shall be bailable unless for capital offenses, where the proof shall be evi¬ 
dent or the presumption great. All fines shall be moderate, and no cruel 
or unusual punishments shall be inflicted. No man shall be deprived of 
his liberty or property but by the judgment of his peers, or the law of the 
land : and should the public exigencies make it necessary for the common 
preservation to take any persou’s property, or to demand his particular 
services, full compensation shall be made for the same. And in the just 
preservation of rights and property, it is understood and declared, that 
no law ought ever to be made, or have force in the said Territory, that 
shall in any manner whatever interfere with, or affect private contracts or 
engagements, bona fide and without fraud previously formed. 

Art. III. -Religion, morality, and knowledge, being necessary to 
good government and the happiness of mankind, schools and the means 
of education shall forever be encouraged. The utmost good faith shall 
always be observed toward the Indians ; their lands and property shall 
never be taken from them without their consent ; and in their property, 
rights, and liberty they shall never be invaded or disturbed, unless in just 
and lawful wars authorized by Congress; but laws founded in justice and 
humanity, shall, from time to time, be made, for preventing wrongs being 
done to them, and for preserving peace and friendship with them. 

Art. IV.—The said Territory, and the States which may be formed 
therein, shall forever remain a part of this confederacy of the United 
States of America, subject to the Articles of Confederation, and to such 
alteration therein, as shall be constitutionally made ; and to all the acts, 
and ordinances of the United States, in Congress assembled, conformable ! 
thereto. The inhabitants and settlers in the said Territory shall be sub¬ 
ject to pay a part of the federal debts contracted or to be contracted, and 
a proportional part of the expenses of government, to be apportioned on 
them, by Congress, according to the same common rule and measure by 
which apportionments thereof shall be made on the other States ; and 
the taxes for paying their proportion, shall be laid and levied by the au¬ 
thority and direction of the legislatures of the district, or districts, or new 
States, as in the original States, within the time agreed upon by the 
United States, in Congress assembled. The legislatures of those districts, 
or new States, shall never interfere with the primary disposal of the soil 
by the United States, in Congress assembled, nor with any regulations 


ORDINANCE OF 1787 


XXXI 


Congress may find necessary for securing the title in such soil to the bona 
fide purchasers. No tax shall be imposed on lands the property of the 
Uuited States ; and in no case shall non-resident proprietors be taxed 
higher than residents. The navigable waters leading into the Mississippi 
and St. Lawrence, and the carrying places between the same, shall be 
common highways, and forever free, as well as to the inhabitants of the 
said Territory, as to the citizens of the United States, and those of any 
other States that may be admitted into the confederacy, without any tax, 
impost, or duty therefor. 

Art. V.—There shall be formed in the said Territory not less than 
three, nor more than five States; and the boundaries of the States, as 
soon as Virginia shall alter her act of cession and consent to the same, 
shall become fixed and established as follows, to wit : The western State 
in the said Territory, shall be bounded by the Mississippi, the Ohio, and 
the Wabash rivers ; a direct line drawn from the Wabash and Post Vin¬ 
cents due north to the territorial line between the United States and 
Canada, and by the said territorial line to the Lake of the Woods and 
Mississippi. The middle State shall be bounded by the said direct line, 
the Wabash from Post Vincents to the Ohio, by the Ohio, by a direct line 
drawn due north from the Mouth of the Great Miami to the said terri¬ 
torial line, and by said territorial line. The eastern State shall be 
bounded by the last mentioned direct line, the Ohio, Pennsylvania, and 
the said territorial line : provided , however, and it is further understood 
and declared, that the boundaries of these three States shall be subject so 
far to be altered, that if Congress shall hereafter find it expedient, they 
shall have authority to form one or two States in that part of the said 
Territory which lies north of an east and west line drawn through the 
southerly bend or extreme of Lake Michigan. And whenever any of the 
said States shall have sixty thousand free inhabitants therein, such State 
shall be admitted by its delegates, into the Congress of the United States, 
on an equal footing with the original States, in all respects whatsoever ; 
and shall be at liberty to form a permanent constitution and State gov¬ 
ernment : provided , the constitution and government so to be formed 
shall be republican, and in conformity to the principles contained in 
these articles ; and, so far as it can be consistent with the general interest 
of the confederacy, such admission shall be allowed at an earlier period, 
and when there may be a less number of free inhabitants in the State 
than sixty thousand. 

Art. VI.— There shall be neither slavery nor involuntary servitude in 
the said Territory, otherwise than in the punishment of crimes whereof 
the party shall have been duly convicted : provided , always, that any 
person escaping into the same, from whom labor or service is lawfully 
claimed in any one of the original States, such fugitive may be lawfully 
reclaimed and conveyed to the person claiming his or her labor or service 
as aforesaid. 

Be it ordained , by the authority aforesaid, that the resolutions of the 
23d of April, 1784, relative to the subject of this ordinance, be, and the 
same are hereby repealed and declared null and void. 


CONSTITUTION OF THE UNITED STATES—1787 1 


We the people of the United States, in order to form a more perfect 
union, establish justice, insure domestic tranquillity, provide for the com¬ 
mon defense, promote the general welfare, and secure the blessings of 
liberty to ourselves and our posterity, do ordain and establish this Con¬ 
stitution for the United States of America. 

ARTICLE I 

Section 1. All legislative powers herein granted shall be vested in 
a Congress of the United States, which shall consist of a Senate and 
House of Representatives. 

Section 2. 1 The House of Representatives shall be composed of 

members chosen every second year by the people of the several Stat< s, 
and the electors in each State shall have the qualifications requisite for 
electors of the most numerous branch of the State legislature. 

2 No person shall be a representative who shall not have attained to 
the age of twenty-five years, and been seven years a citizen of the United 
States, and who shall not, when elected, be an inhabitant of that State in 
which he shall be chosen. 

3 Representatives and direct taxes shall be apportioned among the 
several States which may be included within this Union, according to 
their respective numbers, which shall be determined by adding to the 
whole number of free persons, including those bound to service for a term 
of years, and excluding Indians not taxed, three fifths of all other per¬ 
sons. The actual enumeration shall be made within three years after 
the first meeting of the Congress of the United States, and within every 
subsequent term of ten years, in such manner as they shall by law direct. 
The number of representatives shall not exceed one for every thirty 
thousand, but each State shall have at least one representative ; and until 
such enumeration shall be made, the State of New Hampshire shall be 
entitled to choose three, Massachusetts eight, Rhode Island and Provi¬ 
dence Plantations one, Connecticut five, New York six, New Jersey four, 
Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North 
Carolina five, South Carolina five, and Georgia three. 

4 When vacancies happen in the representation from any State, the 
executive authority thereof shall issue writs of election to fill such 
vacancies. 

5 The House of Representatives shall choose their speaker and other 
officers, and shall have the sole power of impeachment. 

Section 3. 1 The Senate of the United States shall be composed of 

two senators from each State, chosen by the legislature thereof for six 
years; and each senator shall have one vote. 2 

2 Immediately after they shall be assembled in consequence of the 
first election, they shall be divided as equally as may be into three 
classes. The seats of the senators of the first class shall be vacated at 
the expiration of the second year, of the second class at the expiration of 

1 This reprint of the Constitution exactly follows the text of that in the 
Department of State at Washington, save in the spelling of a few words. 

2 This paragraph was superseded by the 17th Amendment. 

xxxii 



CONSTITUTION OF THE UNITED STATES 


xxxiii 

the fourth year, and of the third class at the expiration of the sixth year, 
so that one third may be chosen every second year; and if vacancies 
happen by resignation, or otherwise, during the recess of the legislature 
of any State, the executive thereof may make temporary appointments 
until the next meeting of the legislature, which shall then fill such 
vacancies. 1 

3 No person shall be a senator who shall not have attained to the age 
of thirty years, and been nine years a citizen of the United States, and 
who shall not, when elected, be an inhabitant of that State for which he 
shall be chosen. 

4 The Vice President of the United States shall be President of the 
Senate, but shall have no vote, unless they be equally divided. 

6 '1 he Senate shall choose their other officers, and also a president pro 
tempore , in the absence of the Vice President, or when he shall exercise 
the office of President of the United States. 

6 '1 he Senate shall have the sole power to try all impeachments. 
When sitting for that purpose, they shall be on oath or affirmation. 
When the President of the United States is tried, the chief justice shall 
preside : and no person shall be convicted without the concurrence of two 
thirds of the members present. 

7 Judgment in cases of impeachment shall not extend further than to 
removal from office, and disqualification to hold and enjoy any office of 
honor, trust or profit under the United States: but the party convicted 
shall nevertheless be liable and subject to indictment, trial, judgment and 
punishment, according to law. 

Section 4. 1 The times, places, and manner of holding elections for 

senators and representatives, shall be prescribed in each State by the 
legislature thereof ; but the Congress may at any time by law make or 
alter such regulations, except as to the places of choosing senators. 

2 The Congress shall assemble at least once in every year, and such 
meeting shall be on the first Monday in December, unless they shall by 
law appoint a different day. 

Section 5. 1 Each House shall be the judge of the elections, returns 

and qualifications of its own members, and a majority of each shall con¬ 
stitute a quorum to do business; but a smaller number may adjourn from 
day to day, and may be authorized to compel the attendance of absent 
members, in such maimer, and under such penalties as each House may 
provide. 

2 Each House may determine the rules of its proceedings, punish its 
members for disorderly behavior, and, with the concurrence of two thirds, 
expel a member. 

3 Each House shall keep a journal of its proceedings, and from time 
to time publish the same, excepting such parts as may in their judgment 
require secrecy; and the yeas and nays of the members of either House 
on any question shall, at the desire of one filth of those present, be 
entered on the journal. 

4 Neither House, during the session of Congress, shall, without the 
consent of the other, adjourn for more than three days, nor to any other 
place than that in which the two Houses shall be sitting. 

1 The last half of this sentence was superseded by the 17th Amendment. 


xxxiv 


CONSTITUTION OF THE UNITED STATES 


Section 6. 1 The senators and representatives shall receive a com¬ 

pensation for their services, to be ascertained by law, and paid out of the 
Treasury of the United States. They shall in all cases, except treason, 
felony and breach of the peace, be privileged from arrest during their 
attendance at the session of their respective Houses, and in going to and 
returning from the same ; and for any speech or debate in either House, 
they shall not be questioned in any other place. 

2 No senator or representative shall, during the time for which he 
was elected, be appointed to any civil office under the authority of the 
United States, which shall have been created, or the emoluments whereof 
shall have been increased during such time ; and no person holding any 
office under the United States shall be a member of either House during 
his continuance in office. 

Section 7. 1 All bills for raising revenue shall originate in the 

House of Representatives; but the Senate may propose or concur with 
amendments as on other bills. 

2 Every bill which shall have passed the House of Representatives and 
the Senate, shall, before it become a law, be presented to the President 
of the United States; if he approve he shall sign it, but if not he shall 
return it, with his objections to that House in which it shall have origi¬ 
nated, who shall enter the objections at large on their journal, and proceed 
to reconsider it. If after such reconsideration two thirds of that House 
shall agree to pass the bill, it shall be sent, together with the objections, 
to the other House, by which it shall likewise be reconsidered, and if 
approved by two thirds of that House, it shall become a law. But in all 
such cases the votes of both Houses shall be determined by yeas and nays, 
and the names of the persons voting for and against the bill shall be en¬ 
tered on the journal of each House respectively. If any bill shall not be 
returned by the President within ten days (Sundays excepted) after it 
shall have been presented to him, the same shall be a law, in like manner 
as if he had signed it, unless the Congress by their adjournment prevent 
its return, in which case it shall not be a law. 

3 Every order, resolution, or vote to which the concurrence of the 
Senate and House of Representatives may be necessary (except on a ques¬ 
tion of adjournment) shall be presented to the President of the United 
States; and before the same shall take effect, shall be approved by him, 
or being disapproved by him, shall be repassed by two thirds of the Senate 
and House of Representatives, according to the rules and limitations pre¬ 
scribed in the case of a bill. 

Section 8. 1 The Congress shall have power to lay and collect 

taxes, duties, imposts and excises, to pay the debts and provide for the 
common defense and general welfare of the United States ; but all duties, 
imposts and excises shall be uniform throughout the United States; 

2 To borrow money on the credit of the United States; 

3 To regulate commerce with foreign nations, and among the several 
States, and with the Indian tribes ; 

4 To establish an uniform rule of naturalization, and uniform laws on 
the subject of bankruptcies throughout the United States; 

5 To coin money, regulate the value thereof, and of foreign coin, and 
fix the standard of weights and measures; 

6 To provide for the punishment of counterfeiting the securities and 
current coin of the United States ; 

7 To establish post offices and post roads ; 


CONSTITUTION OF THE UNITED STATES 


XXXV 


fe To promote the progress of science and useful arts by securing for 
limited times to authors and inventors the exclusive right to their respec¬ 
tive writings and discoveries; 

9 To constitute tribunals inferior to the Supreme Court; 

10 To detine and punish piracies and felonies committed on the high 
seas, and offenses against the law of nations; 

11 To declare war, grant letters of marque and reprisal, and make 
rules concerning captures on land and water ; 

12 To raise and support armies, but no appropriation of money to that 
use shall be for a longer term than two years; 

13 To provide and maintain a navy ; 

14 To make rules for the government and regulation of the land and 
naval forces ; 

16 To provide for calling forth the militia to execute the laws of the 
Union, suppress insurrections and repel invasions; 

16 To provide for organizing, arming, and disciplining the militia, and 
for governing such part of them as may be employed in the service of the 
United States, reserving to the States respectively the appointment of the 
officers, and the authority of training the militia according to the disci¬ 
pline prescribed by Congress; 

17 To exercise exclusive legislation in all cases whatsoever, over such 
district (not exceeding ten miles square) as may, by cession of particular 
States and the acceptance of Congress, become the seat of the government 
of the United States, 1 and to exercise like authority over all places pur¬ 
chased by the consent of the legislature of the State in which the same 
shall be, for the erection of forts, magazines, arsenals, dockyards, and 
other needful buildings ; and 

18 To make all laws which shall be necessary and proper for carrying 
into execution the foregoing powers, and all other powers vested by this 
Constitution in the government of the United States, or in any department 
or officer thereof. 

Section 9. 1 The migration or importation of such persons as any 

of the States now existing shall think proper to admit, shall not be pro¬ 
hibited by the Congress prior to the year one thousand eight hundred and 
eight, but a tax or duty may be imposed on such importation, not exceed¬ 
ing ten dollars for each person. 2 

2 The privilege of the writ of habeas corpus shall not be suspended, 
unless when in cases of rebellion or invasion the public safety may re¬ 
quire it. 

3 No bill of attainder or ex post facto law shall be passed. 

4 No capitation, or other direct, tax shall be laid, unless in proportion 
to the census or enumeration hereinbefore directed to be taken. 

6 No tax or duty shall be laid on articles exported from any State. 

6 No preference shall be given by any regulation of commerce or reve¬ 
nue to the ports of one State over those of another: nor shall vessels 
bound to, or from, one State be obliged to enter, clear, or pay duties in 
another. 

7 No money shall be drawn from the treasury, but in consequence of 
appropriations made by law ; and a regular statement and account of the 

1 The District of Columbia, which comes under these regulations, had not 
then been erected. 

2 A temporary clause, no longer in force. See also Article V, 


xxxvi 


CONSTITUTION- OF THE UNITED STATES 


receipts and expenditures of all public money shall be published from time 
to time. 

8 No title of nobility shall be granted by the United States: and no 
person holding any office of profit or trust under them, shall, without the 
consent of the Congress, accept of any present, emolument, office, or title, 
of any kind whatever, from any king, prince, or foreign State. 

Section 10. 1 1 No State shall enter into any treaty, alliance, or con¬ 

federation ; grant letters of marque and reprisal; coin money ; emit bills 
of credit; make anything but gold and silver coin a tender in payment of 
debts ; pass any bill of attainder, ex post facto law, or law impairing the 
obligation of contracts, or grant any title of nobility. 

2 No State shall, without the consent of the Congress, lay any imposts 
or duties on imports or exports, except what may be absolutely necessary 
for executing its inspection laws: and the net produce of all duties and 
imposts laid by any State on imports or exports, shall be for the use of 
the treasury of the United States ; and all such laws shall be subject to 
the revision and control of the Congress. 

3 No State shall, without the consent of Congress, lay any duty of 
tonnage, keep troops, or ships of war in time of peace, enter into any 
agreement or compact with another State, or with a foreign power, or 
engage in war, unless actually invaded, or in such imminent danger as 
will not admit of delay. 

ARTICLE II 

Section 1. 1 The executive power shall be vested in a President of 
the United States of America. He shall hold his office during the term of 
four years, and, together with the Vice President, chosen for the same 
term, be elected, as follows 

2 Each State shall appoint, in such manner as the legislature thereof 
may direct, a number of electors, equal to the whole number of senators 
and representatives to which the State may be entitled in the Congress: 
but no senator or representative, or person holding an office of trust or 
profit under the United States, shall be appointed an elector. 

The electors shall meet in their respective States, and vote by ballot 
for two persons, of whom one at least shall not be an inhabitant of the 
same State with themselves. And they shall make a list of all the per¬ 
sons voted for, and of the number of votes for each ; which list they shall 
sign and certify, and transmit sealed to the seat of the government ot the 
United States, directed to the president of the Senate. The president of the 
1 Senate, shall, in the presence of the Senate and House of Representatives, 
open all the certificates, and the votes shall then be counted. The person 
having the greatest number of votes shall be the President, if such number 
be a majority of the whole number of electors appointed ; and if there be 
more than one who have such majority, and have an equal number of 
votes, then the House of Representatives shall immediately choose by 
ballot one of them for President; and if no person have a majority, then 
from the five highest on the list the said house shall in like manner choose 
the President. But in choosing the President, the votes shall be taken 
by States, the representation from each State having one vote ; a quorum 
for this purpose shall consist of a member or members from two thirds of 
the States, and a majority of all the States shall be necessary to a choice. 

1 See also the 10th, 13th, 14th, and 15th Amendments. 


CONSTITUTION OF THE UNITED STATES 


XXXY11 


In every case, after the choice of the President, the person having the 
greatest number of votes of the electors shall be tlie Vice President. But 
if there should remain two or more who have equal votes, the Senate 
shall choose from them by ballot the Vice President. 1 

3 The Congress may determine the time of choosing the electors, and 
the day on which they shall give their votes; which day shall be the same 
throughout the United States. 

4 No person except a natural born citizen, or a citizen of the United 
States, at the time of the adoption of this Constitution, shall be eligible to 
the office of President; neither shall any person be eligible to that office 
who shall not have attained to the age of thirty-five years, and been four¬ 
teen years a resident within the United States. 

5 In case of the removal of the President from office, or of his death, 
resignation, or inability to discharge the powers and duties of the said 
office, the same shall devolve on the Vice President, and the Congress 
may by law provide for the case of removal, death, resignation, or ina¬ 
bility, both of the President and Vice President, declaring what officer 
shall then act as President, and such officer shall act accordingly, until 
the disability be removed, or a President shall be elected. 

6 The President shall, at stated times, receive for his services a com¬ 
pensation, which shall neither be increased nor diminished during the 
period for which he shall have been elected, and he shall not receive 
within that period any other emolument from the United States, or any 
of them. 

7 Before he enter on the execution of his office, he shall take the fol¬ 
lowing oath or affirmation: — “I do solemnly swear (or affirm) that I 
will faithfully execute the office of President of the United States, and 
will to the best of my ability, preserve, protect and defend the Constitu¬ 
tion of the United States.” 

Suction 2. 1 The President shall be commander in chief of the 

army and navy of the United States, and of the militia of the several 
States, when called into the actual service of the United States; he may 
require the opinion, in writing, of the principal officer in each of the 
executive departments, upon any subject relating to the duties of their 
respective offices, and he shall have power to grant reprieves and pardons 
for offenses against the United States, except in cases of impeachment. 

2 He shall have power, by and with the advice and consent of the 
Senate, to make treaties, provided two thirds of the senators present con¬ 
cur; and he shall nominate, and by and with the advice and consent of 
the Senate, shall appoint ambassadors, other public ministers and consuls, 
judges of the Supreme Court, and all other officers of the United States, 
whose appointments are not herein otherwise provided for, and which 
shall be established by law: but the Congress may by law vest the 
appointment of such inferior officers, as they think proper, in the Presi¬ 
dent alone, in the courts of law, or in the heads of departments. 

3 'The President shall have power to fill up all vacancies that may 
happen during the recess of the Senate, by granting commissions which 
shall expire at the end of their next session. 

Suction 3. He shall from time to time give to the Congress infor¬ 
mation of the state of the Union, and recommend to their consideration 
such measures as he shall judge necessary and expedient; he may, on 

1 This paragraph superseded by the 12th Amendment. 


XXXViii CONSTITUTION' OF THE UNITED STATES 


extraordinary occasions, convene both Houses, or either of thetti, ahd ih 
case of disagreement between them with respect to the time of adjourn¬ 
ment, he may adjourn them to such time as he shall think proper; he 
shall receive ambassadors and other public ministers; he shall take care 
that the laws be faithfully executed, and shall commission all the officers 
of the United States. 

Section 4. The President, Vice President, and all civil officers of the 
United States, shall be removed from office on impeachment for, and con¬ 
viction of, treason, bribery, or other high crimes and misdemeanors. 

ARTICLE III 

Section 1. The judicial power of the United States shall be vested 
in one Supreme Court, and in sucli inferior courts as the Congress may 
from time to time ordain and establish. The judges, both of the Supreme 
and inferior courts, shall hold their offices during good behavior, and 
shall, at stated times, receive for their services, a compensation which 
shall not be diminished during their continuance in office. 

Section 2. 1 The judicial power shall extend to all cases, in law and 

equity, arising under this Constitution, the laws of the United States, 
and treaties made, or which shall be made, under their authority ; — to 
all cases affecting ambassadors, other public ministers and consuls; — 
to all cases of admiralty and maritime jurisdiction ; — to controversies to 
which the United States shall be a party ; — to controversies between two 
or more States; — between a State and citizens of another State ; 1 — be¬ 
tween citizens of different States, — between citizens of the same State 
claiming lands under grants of different States, and between a State, or 
the citizens thereof, and foreign States, citizens or subjects. 

2 In all cases affecting ambassadors, other public ministers and con¬ 
suls, and those in which a State shall be party, the Supreme Court shall 
have original jurisdiction. In all the other cases before mentioned, the 
Supreme Court shall have appellate jurisdiction, both as to law and fact, 
with such exceptions, and under such regulations as the Congress shall 
make. 

3 The trial of all crimes, except in cases of impeachment, shall be by 
jury ; and such trial shall be held in the State where the said crimes shall 
have been committed; but when not committed within any State, the 
trial shall be at such place or places as the Congress may by law have 
directed. 

Section 3. 1 Treason against the United States, shall consist only in 

levying war against them, or in adhering to their enemies, giving them 
aid and comfort. No person shall be convicted of treason unless on the 
testimony of two witnesses to the same overt act, or on confession in 
open court. 

2 The Congress shall have power to declare the punishment of treason, 
but no attainder of treason shall work corruption of blood, or forfeiture 
except during the life of the person attainted. 

ARTICLE IV 

Section 1. Full faith and credit shall be given in each State to the 
public acts, records, and judicial proceedings of every other State. And 

1 See the 11th Amendment. 


CONSTITUTION OF THE UNITED STATES 


XXXIX 


the Congress may by general laws prescribe the manner in which such 
acts, records and proceedings shall be proved, and the effect thereof. 

Section 2. 1 The citizens of each State shall be entitled to all privi¬ 

leges and immunities of citizens in the several States. 

2 A person charged in any State with treason, felony, or other crime, 
who shall flee from justice, and be found in another State, shall on de¬ 
mand of the executive authority of the State from which he fled, be 
delivered up to be removed to the State having jurisdiction of the crime. 

3 No person held to service or labor in one State, under the laws 
thereof, escaping into another, shall, in consequence of any law or regu¬ 
lation therein, be discharged from such service or labor, but shall be 
delivered up on claim of the party to whom such service or labor may 
be due. 1 

Section 3. 1 New States may be admitted by the Congress into this 

Union ; but no new State shall be formed or erected within the jurisdic¬ 
tion of any other State ; nor any State be formed by the junction of two 
or more States, or parts of States, without the consent of the legislatures 
of the States concerned as well as of the Congress. 

2 The Congress shall have power to dispose of and make all needful 
rules and regulations respecting the territory or other property belonging 
to the United States; and nothing in this Constitution shall be so con¬ 
strued as to prejudice any claims of the United States, or of any particular 
State. 

Section 4. The United States shall guarantee to every State in this 
Union a republican form of government, and shall protect each of them 
against invasion; and on application of the legislature, or of the execu¬ 
tive (when the legislature cannot be convened) against domestic violence. 

ARTICLE V 

The Congress, whenever two thirds of both Houses shall deem it 
necessary, shall propose amendments to this Constitution, or, on the 
application of the legislatures of two thirds of the several States, shall 
call a convention for proposing amendments, which, in either case, shall 
be valid to all intents and purposes, as part of this Constitution, when 
ratified by the legislatures of three fourths of the several States, or by 
conventions in three fourths thereof, as the one or the other mode of 
ratification may be proposed by the Congress ; Provided that no amend¬ 
ment which may be made prior to the year one thousand eight hundred 
and eight shall in any manner affect the first and fourth clauses in the 
•ninth section of the first article; and that no State, without its consent, 
shall be deprived of its equal suffrage in the Senate. 

ARTICLE VI 

1 All debts contracted and engagements entered into, before the 
adoption of this Constitution, shall be as valid against the United States 
under this Constitution, as under the Confederation. 

2 This Constitution, and the laws of the United States which shall be 
made in pursuance thereof ; and all treaties made, or which shall be made, 
under the authority of the United States, shall be the supreme law of the 
land ; and the judges in every State shall be bound thereby, anything in 
the Constitution or laws of any State to the contrary notwithstanding. 

1 See the 13th Amendment. 


xl 


CONSTITUTION OF THE UNITED STATES 


3 The senators and representatives before mentioned, and the mem¬ 
bers of the several State legislatures, and all executive and judicial officers, 
both of the United States, and of the several States, shall be bound by 
oath or affirmation to support this Constitution ; but no religious test 
shall ever be required as a qualification to any office or public trust under 
the United States. 

ARTICLE VII 

The ratification of the conventions of nine States shall be sufficient for 
the establishment of this Constitution between the States so ratifying the 
same. 

Done in Convention by the unanimous consent of the States present they 
seventeenth day of September in the year of our Lord one thousand 
seven hundred and eighty-seven, and of the independence of the United 
States of America the twelfth. In witness whereof we have hereunto 
subscribed our names, 

Go: Washington — 

Presidt and Deputy from Virginia 


New Hampshire 

John Langdon 
Nicholas Gilman 

Massachusetts 

Nathaniel Gorham 
Rufus King 

Connecticut 

Wm. Sami. Johnson 
Roger Sherman 

New York 
Alexander Hamilton 

New Jersey 

Wil: Livingston 
David Brearley 
Wm. Paterson 
Jona: Dayton 

Pennsylvania 

B. Franklin 
Thomas Mifflin 
Robt. Morris 
Geo. Clymer 
Thos. Fit.zsimons 
Jared Insrersoll 
James Wilson 
Gouv Morris 

Attest 


Delaware 
Geo: Read 

Gunning Bedford Jun 
John Dickinson 
Richard Bassett 
Jaco: Broom 

Maryland 

James McHenry 
Dan of St. Thos Jenifer 
Danl. Carroll 

Virginia 

John Blair — 

James Madison Jr. 

North Carolina 

Wm. Blount 
Richd. Dobbs Spaight 
Hu Williamson 

South Carolina 
J. Rutledge, 

Charles Cotesworth Pinckney 
Charles Pinckney 
Pierce Butler. 

Georgia 

William Few 
Abr Baldwin 

William Jackson Secretary. 


CONSTITUTION OF THE UNITED STATES 


xli 


Articles in addition to, and amendment of, the Constitution of the United 

States of America, proposed by Congress, and ratified by the legist 

tures of the several States pursuant to the fifth article of the original 

Constitution. 

ARTICLE Ii 

Congress shall make no law respecting an establishment of religion, or 
prohibiting the free exercise thereof ; or abridging the freedom of speech, 
or of the press ; or the right of the people peaceably to assemble, and to 
petition the government for a redress of grievances. 

ARTICLE II 

A well regulated militia, being necessary to the security of a free State, 
the right of the people to keep and bear arms, shall not be infringed. 

ARTICLE III 

No soldier shall, in time of peace be quartered in any house, without 
the consent of the owner, nor in time of war, but in a manner to be pre¬ 
scribed by law. 

ARTICLE IV 

The right of the people to be secure in their persons, houses, papers, 
and effects, against unreasonable searches and seizures, shall not be vio¬ 
lated, and no warrants shall issue, but upon probable cause, supported by 
oath or affirmation, and particularly describing the place to be searched, 
and the persons or things to be seized. 

ARTICLE V 

No person shall be held to answer for a capital, or otherwise infamous 
crime, unless on a presentment or indictment of a grand jury, except in 
cases arising in the land or naval forces, or in the militia, when in actual 
service in time of war or public danger ; nor shall any person be subject 
for the same offense to be twice put in jeopardy of life or limb ; nor shall 
be compelled in any criminal case to be a witness against himself, nor be 
deprived of life, liberty, or property, without due process of law; nor shall 
private property be taken for public use without just compensation. 

ARTICLE VI 

In all criminal prosecutions, the accused shall enjoy the right to a 
speedy and public trial, by an impartial jury of the State and district 
wherein the crime shall have been committed, which district shall have 
been previously ascertained by law, and to be informed of the nature and 
cause of the accusation ; to be confronted with the witnesses against him ; 
to have compulsory process for obtaining witnesses in his favor, and to 
have the assistance of counsel for his defense. 

ARTICLE VII 

In suits at common law, where the value in controversy shall exceed 
twenty dollars, the right of trial by jury shall be preserved, and no fact 
tried by a jury shall be otherwise reexamined in any court of the United 
States, than according to the rules of the common law. 

1 The first ten Amendments were adopted in 1791. 

A. C.—27 


xlii 


CONSTITUTION OF THE UNITED STATES 


ARTICLE VIII 

Excessive bail shall not be required, nor excessive fines imposed, nor 
cruel and unusual punishments inflicted. 

ARTICLE IX 

The enumeration in the Constitution of certain rights shall not be 
construed to deny or disparage others retained by the people. 


ARTICLE X 

The powers not delegated to the United States by the Constitution, nor 
prohibited by it to the States, are reserved to the States respectively, or to 

the people. ARTICLE XU 

The judicial power of the United States shall not be construed to extend 
to any suit in law or equity, commenced or prosecuted against one of the 
United States by citizens of another State, or by citizens or subjects of 

any foreign State. ARTICLE XII* 


The electors shall meet in their respective States, and vote by ballot 
for President and Vice President, one of whom, at least, shall not be an 
inhabitant of the same State with themselves ; they shall name in their 
ballots the person voted for as President, and in distinct ballots the person 
voted for as Vice President, and they shall make distinct lists of all per¬ 
sons voted for as President and of all persons voted for as Vice President, 
and of the number of votes for each, which lists they shall sign and 
certify, and transmit sealed to the seat of the government of the United 
States, directed to the president of the Senate;—The president of the 
Senate shall, in the presence of the Senate and House of Representatives, 
open all the certificates and the votes shall then be counted; — The person 
having the greatest number of votes for President shall be the President, 
if such number be a majority of the whole number of electors appointed ; 
and if no person have such majority, then from the persons having the 
highest numbers not exceeding three on the list of those voted for as 
President, the House of Representatives shall choose immediately, by 
ballot, the President. But in choosing the President, the votes shall be 
taken by States, the representation from each State having one vote; a 
quorum for this purpose shall consist of a member or members from two 
thirds of the States, and a majority of all the States shall be necessary 
ito a choice. And if the House of Representatives shall not choose a 
President whenever the right of choice shall devolve upon them, before 
the fourth day of March next following, then the Vice President shall act 
as President, as in the case of the death or other constitutional disability 
of the President. The person having the greatest number of votes as 
Vice President shall be the Vice President, if such number be a majority 
of the whole number of electors appointed, and if no person have a 
majority, then from the two highest numbers on the list, the Senate shall 
choose the Vice President; a quorum for the purpose shall consist of two 
thirds of the whole number of senators, and a majority of the wholo> 
number shall be necessary to a choice. But no person constitutionally 
ineligible to the office of President shall be eligible to that of Vice Presi¬ 
dent of the United States. 


1 Adopted in 1798. 


2 Adopted in 1804. 


CONSTITUTION OF THE UNITED STATES 


xliii 


ARTICLE XIII i 

Section 1 . Neither slavery nor involuntary servitude, except as a pun¬ 
ishment for crime whereof the party shall have been duly convicted, shall 
exist within the United States, or any place subject to their jurisdiction. 

Section 2. Congress shall have power to enforce this article by ap¬ 
propriate legislation. 

ARTICLE XIV 2 

Section 1. All persons bom or naturalized in the United States, and 
subject to the jurisdiction thereof, are citizens of the United States and of 
the State wherein they reside. No State shall make or enforce any law 
which shall abridge the privileges or immunities of citizens of the United 
States ; nor shall any State deprive any person of life, liberty, or property, 
without due process of law ; nor deny to any person within its jurisdic¬ 
tion the equal protection of the laws. 

Section 2. Representatives shall be apportioned among the several 
States according to their respective numbers, counting the whole number 
of persons in each State, excluding Indians not taxed. But when the right 
to vote at any election for the choice of electors for President and Vice 
President of the United States, representatives in Congress, the executive 
and judicial officers of a State, or the members of the legislature thereof, 
is denied to any of the male inhabitants of such State, being twenty-one 
years of age, and citizens of the United States, or in any way abridged, 
except for participation in rebellion, or other crime, the basis of representa¬ 
tion therein shall be reduced in the proportion which the number of such 
male citizens shall bear to the whole number of male citizens twenty-one 
years of age in such State. 

Section 3. No person shall be a senator or representative in Congress, 
or elector of President and Vice President, or hold any office, civil or mili¬ 
tary, under the United States, or under any State, who, having previously 
taken an oath, as a member of Congress, or as an officer of the United 
States, or as a member of any State legislature, or as an executive or judi¬ 
cial officer of any State, to support the Constitution of the United States, 
shall have engaged in insurrection or rebellion against the same, or given 
aid or comfort to the enemies thereof. But Congress may by a vote of 
two thirds of each House, remove such disability. 

Section 4. The validity of the public debt of the United States, author¬ 
ized by law, including debts incurred for payment of pensions and bounties 
for services in suppressing insurrection or rebellion, shall not be questioned. 
But neither the United States nor any State shall assume or pay any debt 
or obligation incurred in aid of insurrection or rebellion against the 
United States, or any claim for the loss or emancipation of any slave; 
but all such debts, obligations and claims shall be held illegal and void. 

Section 5. The Congress shall have power to enforce, by appropriate 
legislation, the provisions of this article. 

ARTICLE XV» 

Section 1. The right of citizens of the United States to vote shall 
not be denied or abridged by the United States or by any State on account 
of race, color, or previous condition of servitude. 

Section 2. The Congress shall have power to enforce this article by 
appropriate legislation. 

i Adopted in 18C6. 2 Adopted in 1868. 8 Adopted in 1870. 


xliv 


CONSTITUTION OF THE UNITED STATES 


ARTICLE XVI 1 

The Congress shall have power to lay and collect taxes on incomes, 
from whatever source derived, without apportionment among the sev¬ 
eral States, and without regard to any census or enumeration. 

ARTICLE XVII 1 

The Senate of the United States shall be composed of two senators from 
each State, elected by the people thereof, for six years; and each senator 
shall have one vote. The electors in each State shall have the qualifications 
requisite for electors of the most numerous branch of the State legislature. 

When vacancies happen in the representation of any State in the 
Senate, the executive authority of such State shall issue writs of elec¬ 
tion to fill such vacancies: Provided , That the legislature of any State 
may empower the executive thereof to make temporary appointments 
until the people fill the vacancies by election as the legislature may direct. 

This amendment shall not be so construed as to affect the election or term 
of any senator chosen before it becomes valid as part of the Constitution. 

ARTICLE XVIII 2 

Section 1. After one year from the ratification of this article the 
manufacture, sale, or transportation of intoxicating liquors within, the 
importation thereof into, or the exportation thereof from the United 
States and all territory subject to the jurisdiction thereof for beverage 
purposes is hereby prohibited. 

Section 2. The Congress and the several states shall have concur¬ 
rent power to enforce this article by appropriate legislation. 

Section 3. This article shall be inoperative unless it shall have been 
ratified as an amendment to the Constitution by the Legislatures of 
the several States, as provided by the Constitution, within seven years 
from the date of the submission hereof to the States by the Congress. 

ARTICLE XIX 2 

Section 1. The right of citizens of the United States to vote shall not 
be denied or abridged by the United States or by any State on account of sex. 

Section 2. Congress shall have power, by appropriate legislation, to 
enforce the provisions of this article. 


1 Adopted in 1913. 2 Adopted in 1919. 8 Adopted in 1920. 


INDEX. 


Academy, Military, 336, 337. 

Naval, 343, 344. 

Adams, John, President, 173, 324. 

Vice President, 173, 294. 

Adams, John Quincy, on government of 
United States, 18. 

President, 173, 174, 325. 

Adjournment of houses of Congress, 71. 
Adjutant-General, in national govern¬ 
ment, 336. 
in Ohio, 359. 

Admiral, 138, 139. | 

Admission of new States, 235, 236, 242, ; 
243, 294, 296-315. 

Africans admitted to citizenship, 99. 
Agriculture, Department of, 131, 327, 
349, 350. 

State board of, 359. 

Alabama, admission of, 301, 302. 
reconstruction of, 249. 
secession of, 246. 

Alaska, 150, 186, 317. 

Aliens, 96-100. 

Alloy of gold and silver coins, 111. 
Ambassadors, 329. 

Amendments to national Constitution, 
47, 251-258, 265-285. 
first, 257, 266, 267. 
second, 257, 267. 
third, 257, 268. 
fourth, 257, 268. 
fifth, 220, 257, 268. 
sixth, 222, 257, 268, 269. 
seventh. 223, 257, 269. 
eighth, 257, 269. 
ninth, 257, 270. 
tenth, 257 , 270-273. 
eleventh, 210, 211, 257, 273. 
twelfth, 170-172, 174, 257, 273. 
thirteenth, 235, 257 , 273-275. 
fourteenth, 52, 96, 257, 275-282. 
fifteenth, 257, 283, 284. 
sixteenth, 283. 
seventeenth, 284. 

Amendments to constitution of Ohio, 
372, 373. 

Amnesty, 183, 281. 


! Animal Industry, Bureau of, 350. 

! Annapolis Convention, 39, 40. 

Appeal, function of, 224. 

Appellate jurisdiction, 212-214. 
Appointment of officers, 187-192. 
Appropriations, clause regarding, 158. 

for war, 135, 137. 

Aristocracy, defined, 17. 

Arizona, 316. 

Arkansas, admission of, 303, 304. 
reconstruction of, 248. 
secession of, 246. 

Army, power of Congress over, 135. 
President, commander in chief of, 
181. 

punishment for offenses in, 139, 140. 
regular, 136, 137. 
rules for governing, 139. 
salary of officers and men, 337. 338. 
use of, to enforce laws, 197,198. 
Arthur, Chester A., President, 326. 
Articles for government of navy, 139. 
Articles of Confederation, xxi. 
adopted, 35. 
amendments to, 251. 
convention to revise, 39-42. 
defects of, 37-39, 45, 46. 
disregarded, 261,262. 
provisions of, 36, 37. 

Articles of W ar, established, 139. 

Assay offices, 335. 

Assembly, State, 373. 

Assessor, in township government, 369. 
Associate justices of Supreme Court, 
202 . 

list of, xiv. 
salary of, 354. 

Attainder and corruption of blood, 155, 
156, 160, 163, 227, 228. 

Attorneys-General, in national govern¬ 
ment, 206, 338, 339, ix. 
in State government, 359, 362. 
Auditor, in county government in Ohio, 
365, 366. 

in State government, 359, 362. 
Auditors, of Treasury Department, 331- 
333. 


xlv 



xlvi 


INDEX 


Bank currency, 116-1 IS. 

Bankruptcy, in Europe, 103. 

Bankruptcy law, 101-103. 

Banks, established by States, 117, 162. 

national, 11(5-118, 162,334. 

Bates, Attorney-General, on citizenship 
06. 

on suspension of writ of habeas corpus , 
154. 

Belknap, William W., impeached, 64, 

200 , 201 . 

Bill of attainder, forbidden, 155, 156, 
160, 163. 

Bill of rights, Constitution a. 270. 
in first ten amendments, 266-272. 
in Ohio constitution, 358. 

Bills, how passed in Congress, 77-79, 323, 
324. 

in Ohio, 359. 

Bills of credit, Continental Congress 
issues, 32. 

not legal tender, 113. 

States forbidden to emit, 160, 161. 
Bland-Allison Act, 108, 109. 

Blount, William, expelled from Senate, 
70. 

impeached, 64, 70, 199, 200. 

Board of education, in Ohio cities, 
371. 

in Ohio township, 369. 

Board of public works, 359, 360, 362. 
Boards, State, 359. 

Bonds of United States, 87, 88. 

Bright, Jesse D., expelled from Senate, 
70. 

British Parliament, cabinet officers 
members of, 75. 
composition of, 17. 
may amend constitution, 253. 
power of, 214. 

Brownson, Dr., on Constitution of 
United States, 16, 18, 21. 

Buchanan, James, President, 326. 
Bureaus, in departments, 527. 
in Department of Agriculture, 350. 
in Navy Department, 342, 343. 
in Treasury Department, 332-335. 
Burr, Aaron, tried for treason, 226. 

Vice President, 173. 

Cabinet of President, 181, 182. 
composition of, 327. 
officers debarred from Congress, 75. 
Cadets at West Point military academy, 
337. 

California, admission of, 308. 

purchase of, 185. 

Capitation tax, a direct tax, 83. 
clause concerning, 156, 157. 


Carriers, letter, 123. 

Census, Bureau of, 352. 

Director of, 352. 
first, 53. 

Cession of territory by various States. 
237. 

Chancery, Courts of, 208. 

Charge's d’Affaires, 330. 

Charter governments, 25. 
colonies under, 26. 

Charters can not be impaired, 164. 

Chase, Salmon P., Chief Justice, 353. 

Chase, Samuel, impeached, 64, 200. 

Chemistry, Bureau of, 350. 

Chicago, riots in, 198, 245, 246. 

Chief Justices of Supreme Court, 202. 
list of, 353, 354. 
salary of, 205. 

Chinese, disorders, in 1900,134. 
excluded from citizenship, 99. 

Circuit Court, 202, 203. 
in Ohio, 360. 

Circuit Court of Appeals, 131, 202, 205, 
212, 213. 

Circuits, judicial, 354. 

Cities in Ohio, 371. 

Citizens, defined, 97, 98, 231. 
naturalized, 96, 97. 
privileges and protection of, 275-277. 
rights of, in another State, 230, 231. 

Citizenship, admission to, 97-99. 
Chinese excluded from, 99. 
right of suffrage not coextensive with, 
280. 

Civil government, object of, 10. 

Civil Rights BJ1, 231, 252, 275. 276. 

Civil Service Act of 188o, 191, 192. 

Claims, Court of, 129, 203, 205, 211. 

Classified service, 192, 193. 

Clearing a port, 158. 

Clerk, in departments, 352. 
of court, 216, 365. 
of House of Representatives, 55. 
of township in Ohio, 368. 

Cleveland, Grover, President, 326, 327. 

Coast and Geodetic Survey, 352. 

Coasting trade, defined, 158. 

Coinage, of gold, 105-1C9. 
of silver, 109, 110. 

Coinage Act, of 1792, 105. 
of 1873, 107. 

Coining of money forbidden to States, 
161. 

Coins, alloy contained in, 111. 
as legal tender, 105. 
foreign, 112. 

Collector of Customs, 335. 

Colonies, changed to States, 355. 
governments of, 24-26, 356, 357. 





INDEX 


xlvii 


Colonies ( continued ). 
thirteen. 23. 
union of, 27. 

Colorado, admission of, 313. 
Commandant of Marine Corps, 343. 
Commerce, before the adoption of the 
Constitution, 89. 
interstate, 91-94. 

power of Congress to regulate, 89, 
90. 

Commerce, Department of, 351, 352. 
Commissioner, of Agriculture, 349. 
of Customs, 335. 
of Education, 349. 
of Fish and Fisheries, 351. 
of General Land Office, 346. 
of Indian Affairs, 348. 
of Internal Revenue, 334. 
of Navigation, 352. 
of Patent Office, 346. 
of Pensions, 346. 
of Revenue, 85. 

Commissioners, in county government 
of Ohio, 364, 365. 

United States, 205, 330. 

Commission form of municipal govern¬ 
ment, 371. 

Committee of the Whole in House of 
Representatives, 323. 

Committees of Congress. 322, 323. 
Commodore, office of, 138. 

Common law, defined, 223. 

Common pleas, courts of, in Ohio, 360. 
Comptroller, of the Currency, 334. 

of the Treasury, 331, 332. 

Concurrent resolutions, 80, 81. 
Confederation, Articles of. (See Articles 
of Confederation.) 

Congress, each house judges as to its own 
members, 69. 

First Continental, 29, 30. 

First, under Constitution, 294. 
implied powers of, 147-151. 
in two houses, 47. 
majority a quorum in, 68. 
members forbidden to hold other 
office, 74. 

members privileged from arrest, 72. 
methods of voting in, 71. 
numerical designation of, 60. 
of 1765, 28. 
powers of, 81-258. 

powers of, under Articles of Confed¬ 
eration, 36-38. 

President’s power to convene, 195,196. 
prohibitions on, 269. 

Second Continental, 30, 31. 
sessions of, 66, 67, 70, 71. 
unconstitutional acts of, 216, 217. 


Connecticut, no State constitution until 
1818, 26, 357. 

ratification of constitution, 263, 290. 
under colonial charter, 356, 357. 
Constable, in township government in 
Ohio, 369. 

Constitution of Ohio, 357-373. 
Constitution of United States, xxxii. 
accepted by Philadelphia Convention, 
43* 

amendments to. (See Amendments.) 
defined, 15. 

distinguished from State, 19-22. 
friends and opponents of, 289. 
function of, 46. 
put into operation, 293. 
ratification of, 261-265, 290-293. 
real character of, 294, 295. 
supremacy of, 258, 259. 
the work of the nation, 15. 
Constitutions, State, 19, 20, 357. 
Construction and Repair, Bureau of, 343. 
Consul-General, 330. 

Consuls, 330, 331. 

Contempt, power to punish, 70. 
Contested seats, 68. 

Continental Congress, action of, as to 
Constitution, 288, 293. 

First, 29, 30, 50. 

Second, 30, 31. 

Contracts, include grants, 163. 

obligation of, 158-164. 

Convention, Annapolis, 39, 40. 
Constitutional, 40-43, 262, 286, 287, 
289. 

Cooper, Dr., on Tenth Amendment, 271. 
Copyists in departments, 352. 
Copyrights, 126-128. 

Coroner, duties of, 367. 

Corporations, Bureau of, 96. 351. 
Corporations in Ohio, 370, 371. 
Corruption of blood, 227, 228. 

Council in Ohio cities, 371. 
Counterfeiting, punishment for, 120. 
County, relation to State, 20. 

unit in Southern States, 364. 

County government in Ohio, 362-367. 
Courts, British, 214. 

| French, 215. 
of Chancery, 208. 
of District of Columbia, 204, 205. 
of Equity, 208. 

State, 360, 374. 
territorial, 204. 

' Courts, United States, 201-229. 

Circuit, 131, 202, 213. 
i Circuit Courts of Appeals, 131, 202, 
205, 212, 213. 

1 classes of, 201, 205. 






xlviii 


INDEX 


Courts, United States ( continued). 
compared with those of Great Brit¬ 
ain, 214. 

Court of Claims, 131, 203-205, 211. 
District, 131, 202, 205, 213. 
inferior, 201. 
judges of, 202-205. 

not open to citizens of Territories or 
District of Columbia, 211. 
officers of, 206. 
powers of, 207-209. 

Supreme Court, 129, 201, 202, 208, 209, 

212 . 

three grades of judges in, 205. 

Criminal cases tried by jury, 219. 

Cuba, government of, 320. 

Cumberland Road, construction of, 120. 
Currency, Bureau of, 334. 

Curtis, Mr., on advocates of Constitu¬ 
tion, 289. 

on defects of Articles of Confedera¬ 
tion, 37. 

on naturalization, 99. 

Customs, collection of, 335. 

income from, 87. 

Customs Appeals, Court of, 204. 

Dead-letter Office, 121. 

Debt, public, of Ohio, 361, 362. 

of United States, 88, 282. 

Declaration of Independence, xvii, 33, 
34. 

Delaware, first constitution of, 356. 

ratification of Constitution, 263, 290. 
Delegated powers, 270-273, 358. 
Democracy, defined, 17, 18. 
Demonetization of silver, 107. 
Department, executive, 166-201,324-353. 
judicial, 201-229, 353, 354. 
legislative, 47-166, 321-324. 
of Agriculture, 131, 349, 350. 
of Commerce, 351, 352. 
of Interior, 129, 327, 345-349. 
of Justice, 206, 327, 338, 339. 
of Labor, 352. 

of Navy, 137, 138, 327, 342-345. 
of State, 188, 327-331. 
of War, 138, 327, 336-338. 

Post Office, 121-126, 327, 340-342. 
Treasury, 32, 327, 331-335. 

Designs, patents for, 130. 

Dilatory motion, 71. 

Direct tax, 82, 83. 
clause concerning, 156, 157. 
of 1861, 83, 84. 
on District of Columbia, 145. 

Director, of Geological Survey, 349. 
of the Census, 352. 
of the Mint, 335. 


Disabilities, removal of, 281, 282. 
District Attorney, duties of, 206. 
District Courts, 131, 202, 205, 213. 
District of Columbia, Congress has ex¬ 
clusive power in, 143-145. 
courts of, 204, 205. 
direct tax on, 145. 
government of, 146, 147. 
history of, 143, 144. 
slavery abolished in, 146, 152, 274. 
United States courts not open to citi¬ 
zens of, 211. 

Dollar, gold, 105-108, 111. 
silver, 107-111. 

Spanish, 104, 105. 
trade, 110. 

Draft Act, 136. 

Dred Scott case, 216, 217, 232, 240. 
Duties, excise, 85. 
export, 157. 
import, 84, 164. 
on tonnage, 165, 166. 
ower of Congress to lay, 81, 82. 
tates forbidden to levy, 164. 
uniform in all States, 86, 89. 

Education, Department or Bureau of, 
346, 348. 

in Ohio, 361, 368, 369, 372. 

Election districts, of townships, 364, 
365. 

Elections, Committee on, 68, 322. 
of President, 172-177. 
of senators and representatives, 65. 
Electoral votes, 174, 175. 

Electors of President and Vice Presi¬ 
dent, 169-172. 

Eleventh Amendment, 210, 211, 257, 
273. 

Ellsworth, Oliver, Chief Justice Su¬ 
preme Court, 353. 

Emancipation Proclamation, 152. 
Embargo Act of 1807, 90, 150. 

Eminent domain, 221, 222. 

Enabling act, 242. 

Engineers, chief of, 336. 

Engraving and Printing, Bureau of, 
335. 

Enrolled bills, Committee on, 323. 
Entering port, 157, 158. 

Envoys extraordinary, 329. 

Equity, courts of, 208. 

Ex post facto law, case of Garland, 
217. 

forbidden, 155, 156, 160, 163. 
Examination, competitive, for public 
service, 189, 190. 

Excise duties, 85. 
power of Congress to lay, 81, 82. 




INDEX 


xlix 


Executive department, in national gov¬ 
ernment, 166-201, 324-353. 
in Ohio, 359. 

Executive power, in President, 166-168. 
Executive sessions, 186. 

Expatriation, 98, 99. 

Experiment stations, 350. 

Export duties forbidden. 157. 

Expulsion from Senate and from House, 
70. 

Extradition, 234. 

Farrar, Mr., on commercial power, 90. 

on post offices, 121. 

Federal Reserve Board, 118. 

Federal Trade Commission, 96. 

Felony, punishment for, 132. 

Field, Justice, on pardoning power, 182. 
Fifteenth Amendment, 257, 283, 284. 
Fifth Amendment, 220, 257, 268. 
Filibustering, 69, 70. 

Fillmore, Millard, President, 326. 
Finance, in constitution of Ohio, 370. 
Finance Act of 1900, 110. 

Finance report, 159. 

Fines, excessive, 269. 

Fish and Fisheries, Commission of, 351. 
Fisher, Mr., on the British constitution, 
253. 

Florida, admission of, 305. 
purchase of, 185, 238. 
reconstruction of, 249. 
secession of, 246. 

Forfeiture of real property, 227-229. 
Fourteenth Amendment, 52, 96, 257, 
275-278. 

Franchise, elective, in Ohio, 361. 
Franking privilege, 124. 

Franklin, Postmaster-General, 32, 121, 
341. 

Free coinage, of gold, 107. 
of silver, 108. 

Freedom of speech and of the press, 
266. 

Fugitives, from justice, 233, 234. 

from labor, 234, 235. 

Fuller, Melville W., Chief Justice Su¬ 
preme Court, 354. 

Gallatin, Albert, as senator, 62. 

Garfield, James A., President, 326. 
Garland, case of, 217. 

General, office of, 136, 137. 

General Assembly, 358, 362. 

General Court, in Massachusetts, 373. 
Geological Survey, Director of, 349. 
Georgia, first constitution of, 357. 
one legislative house in, 47. 
ratification of constitution, 263, 290. 


Georgia ( continued ). 
reconstruction of, 249. 
secession of, 246. 

Gerrymander, 54. 

Gold, coinage of, 105-109. 
commerce of world carried on in, 112 
ratio to silver, 105, 106, 108. 
reserve fund of, 109, 112. 

Gold certificates, 111, 112. 

Gold dollar, unit of value, 107. 
Government, civil, 10. 
colonial, 24-26. 

distinguished from the nation, 15, 16, 
272. 

distribution of powers of, 21, 22. 

forms of, 17, 18. 

local, two systems of, 364. 

necessity for, 10, 11. 

of District of Columbia, 146, 147. 

peculiarity of United States, 18, 19. 

State, 355-375. 

territorial, 316. 

Governor, power of, 359. 

Grand jury, 220. 

Grant, Ulysses S., President, 326. 
Grants, legislative, 163. 

Great Britain, cabinet officers in, 75. 
constitution of, 253. 
courts of, 214. 
government in, 17. 
impeachment in, 63, 64. 

Greenbacks, 114-116. 

Grievances, redress of, 266, 267. 

Guam, government of, 319. 

Habeas corpus , writ of, 152-155. 
Hamilton, Alexander, on bills of rights, 
270. 

on control of elections by Congress, 

66 . 

on implied powers of Congress, 148. 
on nomination to office, 186. 
views on Articles of Confederation, 39. 
Harrison, Benjamin, President, 327. 
Harrison, William H., President, 325. 
Hawaiian Islands, annexation of, 150, 
185, 239. 

government of, 316-318. 

Hayes, Rutherford B., President, 326. 
Heads of departments, 181, 187. 

Henry, Patrick, against ratifying Con¬ 
stitution, 295. 

on control of elections by Congress, 

66 . 

on Stamp Act, 28. 

Home Department, 345. 

House of Delegates, 374. 

House of Representatives, in national 
government, adjournment of, 71, 72. 



INDEX 


House of Representatives ( continued ). 
composition of, 47. 
elects President, 171, 173, 174. 
expulsion from, 70. 
officers of, 55. 

originates bills for raising revenue, 76. 
speaker of, 55, 73, 322. 

(See Representatives.) 

House of Representatives, in State 
government, 358. 

Humphries, West H., impeached, 64, 65, 

200 . 

Hydrographic Office, 343. 

Idaho, admission of, 314. 

Illinois, admission of, 301. 

Immigration, Bureau of, 352. 
Impeachment, 198-200. 

House of Representatives has power 
of, 55, 56. 

punishment in cases of, 64. 

Senate tries, 63, 64. 

Implied powers of Congress, 147-151. 
Import duties, 84, 164. 

States cannot lay, 164, 165. 

Imposts, power of Congress to lay, 81, 
82. 

Inauguration of President, 294. 

Income tax, 83, 86. 

Independence, resolutions for, 32, 33. 
Indian affairs, charge of, 345. 

Office of, 348. 

Indian Territory, 315. 

Indiana, admission of, 301. 

Indians, commerce with, 89, 91. 

not taxed, 231, 278. 

Indictment, 220, 221. 

Indirect tax, 82. 

Inheritance tax, 87. 

Insolvency, 101, 102. 

Inspection, object of, 164,165. 
Inspector-General, 336. 

Insurance, Superintendent of, 359. 
Interior, Department of, 129, 327, 345- 
349. 

Internal revenue, 85. 

Bureau of, 334, 335. 

Interstate commerce, 91-96. 

Interstate Commerce Commission, 352. 
Invasion, States protected against, 243, 
245. 

Iowa, admission of, 306, 307. 

Ironclad oath, 261. 

Iroquois, government of, 19 (note 2). 
Island possessions of United States, 
317. 

Jackson, Andrew, President. 325. 
Jameson, on the Constitution, 16, 21. 


Jay, John, Chief Justice Supreme Court, 
353. 

on courts of United States, 208, 209. 
on national sovereignty, 161. 

Jefferson, Thomas, on government of 
colonies, 356. 
on town system, 364. 

President, 173, 324, 325. 

Johnson, Andrew, impeached, 64, 190, 

200 , 201 . 

President, 326. 

Joint resolutions, 80. 

Journal of Senate and House of Repre¬ 
sentatives, 70. 

Judge-Advocate-General, 336, 343. 
Judges, in courts of Ohio, 360, 371. 
in State courts, 374. 
in United States courts, 202-205. 
Judicial department, 201-229, 353, 354. 
Judicial proceedings defined, 230. 
Judicial system of Ohio, 360. 
Jurisdiction, appellate, 212-214. 

original, 212, 215. 

Jury, 21S-220. 
trial without, 223. 

Justice, Department of, 206, 327, 338, 
339. 

Justice of peace in Ohio, 360, 368. 
Justices, in courts of the United States, 
202-205. 


Kansas, admission of, 310, 311. 

Kent, Chancellor, on treaties, 185. 
Kentucky, admission of, 297. 

Ku Klux Bill, 277. 

Labor, Department of, 352. 

Laborers in departments, 352. 

Land Office, 346, 347. 

Laws, passage of, 78-80, 323, 324. 
Lecompton Constitution, 311. 

Lee, Richard Henry, resolution of, 32, 
33. 

Legal tender, gold and silver coin, 162. 
notes, 114-116. 

Legislation, methods of, 78, 79. 
Legislative department, in national gov¬ 
ernment, 47-166, 321-324. 
in State of Ohio, 358, 359. 

Legislative grants, 163. 

Legislatures, State, 259, 373. 

Letters, 122-124. 

Librarian, State, 360. 

Lieutenant General, 137, 337. 
Lighthouse Service, 352. 

Lincoln, Abraham, President, 326. 

proclamation of, in 1863, 247. 
Lotteries, prohibited in Ohio, 372. 



INDEX 


li 


Louisiana, admission of, 243, 300, 301. 
purchase of, 150, 185. 186, 238, 300. 
reconstruction of, 249. 
secession of, 246. 

States formed from, 300. 

McKinley, William, President, 327. 
Madison, James, on bills of credit, 114. 
on compensation of members of Con¬ 
gress, 72. 

on implied powers of Congress, 148. 
on number of senators, 57. 
on paper currency, 162. 
on President’s power of removal, 189. 
on ratification of Constitution, 264. 
on republican government, 244. 
President, 325. 

Magna Charta, trial by jury under, 218. 
Mail routes, 125. 

Maine, admission of, 302. 

Marine Corps, composition of, 346. 
Marque and reprisal, letters of, 134, 135. 

States forbidden to grant, 160. 
Marshal, in national government, 206. 
in Ohio cities, 371. 

Marshall, John, Chief Justice Supreme 
Court, 353. 

on powers of Congress, 149. 

Martial law, trials under, 223. 

Maryland, first constitution of, 357. 

ratification of Constitution, 263, 290. 
Massachusetts, first constitution of, 
357. 

ratification of Constitution, 263, 290. 
under colonial charter, 356. 

Matthews resolution, 80. 

Mayor in Ohio cities, 371. 

Measures and weights, Congress regu¬ 
lates, 118, 119. 

Medicine and Surgery, Bureau of, 343. 
Messengers in departments, 352. 

Metric system, 119, 120. 

Michigan, admission of, 304, 305. 
Mileage allowed to senators and repre¬ 
sentatives, 73, 321. 

Military Academy at West Point, 336, 
337. 

Military districts, 248. 

Military forces of United States, 136. 
Militia, called out three times, 141, 142. 
in Ohio, 362. 
laws regarding, 140, 141. 
naval, 141. 
necessity for, 267. 
services in War of Rebellion, 142. 
Mill. Mr., on bankruptcy, 103. 

Ministers plenipotentiary, 329. 

Ministers resident, 329. 

Minnesota, admission of, 308. 


Mint, established at Philadelphia, 105. 

of United States, 335. 

Mississippi, admission of, 301. 
reconstruction of, 249. 
secession of, 246, 247. 

Missouri, admission of, 302, 303. 
in 1861, 247. 


Missouri Compromise, 303-305. 
repealed. 310. 

Mixed governments, defined, 18. 
Monarchy, defined, 17. 

Money, Congress has power to borrow, 
87. 


Congress has power to coin, 104. 
Congress regulates value of, 105, 106. 
general government controls, 162. 
history of, 104-118. 
punishment for counterfeiting, 120. 
States forbidden to coin, 160, 161. 
Monroe, James, President, 325. 
Montana, admission of, 314. 

Morris. Gouverneur, writes final draft 
of Constitution, 43. 

Mnlford, Mr., on suspension of writ of 
habeas corpus , 154, 155. 


Nation, distinguished from government, 
15, 16. 

sovereignty in, 14,15, 160, 161. 
National banks, established, 117, 118. 
number of, 334. 

National Constitution, relation to State, 

21 , 22 . 

National Road, construction of, 126. 
Naturalization, 96-101. 

in acquired territory, 49. 

Nautical Almanac, 343. 

Naval Academy at Annapolis, Hd., 343, 
344. 

Naval militia, 141. 

Naval Observatory, 343. 

Naval Officer, in customhouse, 335. 
Naval stations, 342. 

Navigation, Bureau of, 343. 

Commissioner of, 352. 

Navy, Articles for Government of, 139. 
Department of, 137,138,327,342-344. 
officers of, 138,139,344. 

President, commander in chief of, 
181. 

punishment for offenses in, 139,140. 
Navy yards, 342. 

Nebraska, admission of, 313. 

Negroes, disfranchisement of, 279. 
enrolled in militia, 141. 

(See Slaves ; Suffrage.) 

Nevada, admission of, 312, 313. 

New Hampshire, government of, 356. 
ratification of Constitution, 263, 292. 



lii 


INDEX 


New Jersey, government of, 356. 
ratification of Constitution, 263, 290, 

291. 

New Mexico, 315. 

New York, first constitution of, 357. 
ratification of Constitution, 263, 290- 

292. 

New York, seat of government at, 144. 
Nobility, no title of, granted, 159, 285. 
North Carolina, first constitution of, 357. 
ratification of Constitution, 263, 292. 
reconstruction of, 249. 
secession of, 246. 

North Dakota, admission of, 313, 314. 
Northwest Territory, divided, 306. 
government of, 239. 
ordinance for, 237, 299. 

Nullification, 259. 

Oath of office, of President, 180. 

of other officers, 259-261. 

Observatory, Naval, 343. 

Offenses, place of trial of, 219. 

Officers, appointment of, 186-192. 
of army, 337, 338. 
of city in Ohio, 371. 
of county in Ohio, 364-367. 
of courts, 206. 

of House of Representatives, 55. 
of navy, 138, 139, 344. 
of Senate, 63. 

presents from foreign powers to, 159. 
removal of, 177, 178, 187-191. 

State, 359, 360. 
tenure of, 190. 

Ohio, admission of, 298, 300. 

constitution of, 69, 357-373. 

Oklahoma, 315. 

Ordinance of 1787, xxvii, 237-239, 299. 
Ordnance, Bureau of, 343. 

Oregon, admission of, 309, 310. 

Original jurisdiction, 212, 213. 

Orleans, Territory of, 300. 

Panama Canal Zone, 320. 

Paper money, 162. 

Parcel post, 122. 

Pardons, President grants, 181, 182, 
281. 

Parliament. (See British Parliament.) 
Parliamentary law, 69. 

Passports, issuing of, 328. 

Patent Office, 128-131, 345. 
officers of, 346. 

Patents, application for, 129, 130. 
Commissioner of, 129. 
issuing of, 126-129. 

Patterson, Mr., on amending Articles of 
Confederation, 42. 


Peck, James H , impeached, 64, 200. 

Pendleton bill, 191. 

Pennsylvania, government of, 47, 356. 
ratification of Constitution, 263, 290. 

Pensions, 346. 

People, distinguished from government, 
272 

Petit jury, 220. 

Philadelphia, seat of government, 143, 
144. 

Philadelphia Convention, 40-43. 

Philippine Islands, acquisition of, 150, 
185, 186, 239. 
government of, 319. 
insurrection in, 134. 

Pickering, John, impeached, 64, 65, 200. 

Pierce, Franklin, President, 326. 

Pinckney, General, on compensation of 
members of Congress, 72. 

Piracy, punishment for, 131, 132. 

Pitkin, Timothy, on colonial charters, 
25, 26. 

on proposed union of 1754, 28. 
on proposed independence, 33. 
on the Stamp Act, 29, 

Police power of States, 91, 277. 

Polk, James K., President, 325, 326. 

Poll tax, a direct tax, 82, 83. 

Porto Rico, acquisition of, 150,185, 239. 
government of. 318, 319. 

Post office, general, established, 32. 

Post Office Department, 121-126, 327, 
340-342. 

Post roads established, 125, 126. 

Postage stamps, use of, 123. 

Postal cards, use of, 123. 

Postal money order system, 123. 

Postal savings banks, 125. 

Postmasters-General, 340, x. 
appointments made by, 187. 
assistant, 341, 342. 

Presentment, defined, 220, 221. 

Presents, from foreign powers, 159, 285. 

President, appointments by, 187-194. 
commander in chief of army and 
navy, 181. 

controls militia, 141. 

election of, 169-177. 

election of first, 293, 294. 

executive power in, 166-168. 

impeachment of, 198. 

inauguration of, 293, 294. 

message of, 195, 196. 

oath of office. 180. 

pardoning power of, 181, 182, 281. 

powers of, 181-197, 281. 

presidential succession, 178, 179. 

removal of, 177, 178. 

resolutions require approval of, 79, 80. 





INDEX 


liii 


President ( continued ). 
salary of, 1 TO, ISO. 
term of office, 168, 169. 
vacancy in office of, 179. 
veto power of, 77. 

President of Senate, 73. 

pro tempore of Senate, 63, 322, ii. 
Presidents, list of, 324-327. 

Press, freedom of, 266. 

Printing and Engraving, Bureau of, 335. 
Printing Office, Government, 353. 
Privateer, defined, 134. 

Probate Court in Ohio, 360. 

Probate judge in county government in 
Ohio, 365. 

Property, forfeiture of real, 227-229. 
private, power of government over, 
221 , 222 . 

Proprietary governments, 24, 26. 
Prosecuting attorney, in county govern¬ 
ment in Ohio, 366. 

Provincial governments, 24, 26. 

Public acts, defined, 230. 

Public debt, of Ohio, 361, 362. 

of United States, 88, 282. 

Public lands, 346, 347. 

Public Printer, 353. 

Public uses, defined, 222. 

Public works, board of, 362. 

Puerto Rico. (See Porto Rico.) 
Punishments, cruel, clause forbidding, 
269. 

Pure Food Act, 94. 

Quartering soldiers, 268. 
Quartermaster-General, 336. 

Quorum in Congress, 68-70. 
in Ohio, 359. 

Railroads, interstate, control and reg¬ 
ulation of, 94. 

Randolph, Edmund, on powers of Con¬ 
gress, 147. 

Virginia plan of, 41, 42. 

Ratification, of amendments, 254-257. 

of Constitution, 261-265, 290-293. 
Rear Admiral, office of, 138, 139. 
Rebellion, disabilities from, 282. 
Receivers of Land Offices, 348. 
Reclamation service, 349. 
Reconstruction of States, 246-251 
Recorder, county, 367. 

Records, defined, 230. 

Reed, Speaker, dilatory motions not en¬ 
tertained by, 71. 

Register of Treasury, 331, 334. 
Registered letters, 123. 

Registers of Land Offices, 347, 348. 
Religion, law respecting, 266, 267. 


Religious test for office, prohibited, 259, 
261. 

Removal from office, 177, 178, 187-191. 
Reporters of Supreme Court, 206. 
Representation, basis of, 51-53, 278, 279. 
Representatives, House of. (See House 
of Representatives.) 
Representatives, in national govern¬ 
ment, at large, 54. 
by whom chosen, 48. 
compensation of, 72, 73. 
elections for, 65. 
freedom from arrest, 74. 
from newly admitted States, 302, 305. 
number of, for different decades, 53. 
qualifications of, 48, 49. 
term of, 47, 48. 
vacancies in office of, 55. 
Representatives, in State government, 
358, 359, 373. 

Reprieves, President grants, 181, 182, 
281. 

Reprisal, letters of marque and, 134, 
135. 160. 

Republic, defined, 17, 18. 

Republican government defined, 243, 
244. 

Resolutions, concurrent, 80, 81. 
joint, 79, 80. 

Retired officers, of army, 337. 

of navy, 345. 

Revenue, internal, 85-87. 

methods of raising, 83-85. 

Revenue bills originate in House of 
Representatives, 76. 

Rhode Island, no State constitution 
until 1842, 26, 356, 357. 
ratification of Constitution, 263-265, 
292, 293. 

Rights, difference between political and 
civil, 219. 

enumeration of, 270. 

Roosevelt, Theodore, President, 327. 
Royal governments, 24, 26. 

Rutledge, John, Chief Justice Supreme 
Court, 353. 

Sailors, admission to citizenship, 98 
Samoan Islands, division of, 319, 320. 
Schools, public, in Ohio, 360, 368, 372. 
Science, clause for promoting, 126. 
Searches and seizures, 268. 

Secession of States, 246, 249. 

Secretaries of Agriculture, 349, 350, xiv. 
of Interior, 346, 349, xiii. 
of Legation, 330. 
of Navy, 342, xi. 

of State, in national government, 328, 
329, iv. 






liv 


INDEX 


Secretaries ( continued ). 
of State, iu Ohio, 359, 362. 
of Treasury, 331, v. 
of War, 336, vii. 

Securities, defined, 120. 

Senate, adjournment of, 71, 72. 

“ advice and consent of,” in making 
treaties and appointments, 183,184. 
composition of, 56. 
discussion in Convention regarding, 
56, 57. 

elects Vice President, 172,174. 
expulsion of members from, 70. 
officers of, 63. 

president pro tempore of, 63. 
tries impeachments, 55,63, 64. 
vacancy in, 59. 

Vice President, president of. 62, 321. 
Senators, in national government, com¬ 
pensation of, 72, 73. 
division into three classes, 59, 60. 
election of, 58, 59, 65, 66. 
freedom from arrest of, 74. 
number of, 56, 57. 
qualifications of, 61, 62. 

Senators, in State government, 358, 373. 
Sessions, executive, 186. 
of Congress, 67. 
open, 70. 
special, 196. 

Seven Ranges, 347. 

Seventeenth Amendment, 284. 

Seventh Amendment, 223, 257, 269. 
Seward, Secretary, on treason, 226. 
Shays’s Insurrection, 38. 

Sheriff, in county government, 364,366. 
Sherman Act, 109, 110. 

Signal Corps, 336. 

Silver, legal tender, 105, 111. 
made subsidiary, 107, 108. 
ratio to gold, 105, 106. 

Sherman Act, 109. 
trade dollar, 110. 

Silver certificates, 111, 112. 

Sinking fund, in Ohio, 362. 

Sixteenth Amendment, 283. 

Sixth Amendment, 222, 257, 268, 209. 
Slave trade, clause regarding, 151. 

considered piracy. 132. 

Slavery, abolished in District of Colum- 
1)13/ 14.0 

abolished in United States, 235, 273, 
274. 

action of Congress regarding, 152. 
Missouri Compromise, 303. 
prohibited in Territories, 239, 240. 
Slaves, fugitive, 234, 235. 

tax on, 83, 157. 

Social compact, 12, 13. 


Society, authority of, 12. 
limited power of, 14. 
of divine origin, 13. 

Soldiers, admission to citizenship, 98. 

quartering in houses, 268. 

Solicitor, in Ohio cities, 371. 
Solicitor-General, 206, 339. 

Soutli Carolina, government of, 356. 
ratification of Constitution, 263, 290. 
reconstruction of, 249. 
secession of, 246. 

South Dakota, admission of, 313, 314. 
Sovereignty in the nation, 14, 15, 160, 
161. 

Speakers of the House of Representa¬ 
tives, 55, 73, 322, ii. 

Special sessions of Congress, 196. 

Speech, freedom of, 266. 

Stamp Act, passage of, 28. 

Stamp duties, 87. 

Stamps, postage, 123. 

State, Department of, 188, 327-331. 

State board of agriculture, 359. 

State legislatures, 259, 373. 

State sovereignty, doctrine of. 246. 
States, admission of new, 235, 236, 242, 
243, 296-315. 
charter banks, 117. 
classificai ion of, 3L6. 
constitutions of, 19-22, 357-375. 
criminals escaping from, 233. 
defined, 15. 

faith and credit given to acts of. 
230. 

government in, 245, 373, 374. 
military districts in, 248. 
no preference to ports of, 157, 158. 
police power of, 277. 
prohibitions on, 113, 116, 160-166. 
protection of, 245. 
reconstruction of, 246-251. 
regulations regarding interstate com¬ 
merce, 92, 93. 
relation to nation, 20. 
republican form of government guar¬ 
anteed to, 243. 
secession of, 246. 
status of seceded, 249. 
surrender of rights by, 242. 
taxation by, 83, 165, 370. 
veto in, 78. 

Steam Engineering, Bureau of, 343. 
Stocks, defined, 120. 

Story, Judge, on defects of Articles of 
Confederation, 37, 38. 
on implied powers of Congress, 149, 
150. 

on President’s power of removal, 188, 
189. 





INDEX 


lv 


Street commissioner, in Ohio villages, 

372. 


Subsidiary coins, 111. 

Suffrage, by those not naturalized, 100. 
in Continental Congress, 60. 
in different States, 374. 
in House of Representatives, 50. 
in republics, 18. 

not coextensive with citizenship, 233. 
qualifications for, 279, 284. 
restriction of, 100. 
woman, 279, 280. 

(See Fifteenth Amendment.) 

Sumter, Mr., on President’s power of 
removal, 188. 

Superintendent, of Census, 362. 

of Insurance, 369. 

Supervising Architect, 335. 

Supervising Inspector-General, 352. 
Supplies and Accounts, Bureau of, 343, 
Supremacy of the Constitution and laws 
of United States, 258, 259. 

Supreme Court, national, constitu¬ 
tional provision for, 129, 201. 
function of, 208, 209. 
jurisdiction of, 212. 
lists of justices of, 353, xiv. 

Supreme court, State, 300. 

of District of Columbia, 204. 

Surgeon General, 336. 

Survey, Coast and Geodetic, 352. 

of public lands, 346, 347. 

Surveyor, county, 365, 367. 

in customhouse, 335. 
Surveyor-General, 194, 347. 

Swayne, Judge, on Congress and the 
courts, 216. 

Swayne, Charles, District Judge, im¬ 
peached, 64, 201. 




Taft, William H., President, 327. 

Taney, Roger B., Chief Justice Su¬ 
preme Court, 353. 
on citizenship of negroes, 232. 

Tariff laws, 84, 85. 

Taxation, by States, 83, 165, 370. 
by United States, 83. 
defects of Articles of Confederation 
regarding, 37. 
in Ohio, 366. 
of colonies, 28, 29. 
power of, 82. 

Taxes, capitation, 156,157. 
direct, 82, 83, 156, 157. 
in county government, 364, 366. 
income, 86. 
indirect, 82, 83. 
inheritance, 87. 
none on exports, 157. 


Taxes ( continued ). 
on District of Columbia, 145. 
on slaves, 151. 

Taylor, Zachary, President, 326. 
Telegraph, proposed government con¬ 
trol of, 126. 

Tennessee, admission of, 297, 298. 
reconstruction of, 247. 
secession of, 246. 

Tenth Amendment, 257, 270-273. 
Tenure of office, 190. 

Territories, admission of, to Union. 242. 
243. 

courts of, 204. 

delegate to Congress from, 54. 
direct tax on, 145. 
government of, 240, 241, 317. 
not provinces, 243. 

Ordinance of 1787, 237, 299. 
organized, 317. 
relation to Union, 241. 
slavery abolished in, 146,152, 239, 240, 

274. 

United States courts not open to citi¬ 
zens of, 211. 

Territory, acquisition of, 184, 185, 238. 
Texas, admission of, 185, 305. 
annexation of, 150, 238. 
reconstruction of, 249. 
secession of, 246. 

Thirteenth Amendment, 235, 257, 273- 

275. 

Three fifths rule, 51.157. 

Tiffany, Mr., on pardoning power of 
President, 182, 183. 

Titles of nobility not granted, 159, 285 
Tonnage, duties on, 165, 166. 

Town, unit in New England States, 364. 
Township, 363. 

government in Ohio, 362, 368-370. 
Trade, coasting, 158. 

Trade dollar, 110. 

Trade-marks, registering of, 130. 
Treason, conviction of, 226. 
kinds of, 224, 225. 
none against a State, 229. 
punishment of, 227-229. 

Treasurer, in national government, 333. 
in Ohio county government, 364, 366. 
in State government, 359. 
of township in Ohio, 368. 

Treasury Department, 32, 327, 331-336. 
Treasury notes, 88, 89. 
are bills of credit, 113. 
made legal tender, 113,114. 
not real money, 115,116. 

Treaties, power of President and Sen¬ 
ate to make, 183-186. 

States forbidden to enter into, 161. 







lvi 


INDEX 


Trial, by jury, 218, 219. 
in State where crime was committed, 
268, 269. 

right to impartial, 222, 223, 268. 
second, 221 , 268. 

Trustees, in township in Ohio, 368. 

of children’s homes, 367. 

Trusts, law against, 95, 196. 

Tutuila, acquisition and government of, 
319 320 

Twelfth Amendment, 170-112, 174, 257, 
273 

Tyler, John, President, 325. 

Union, admission of new States into, 
235, 236, 242, 243, 294, 296-315. 
relation of seceded States to, 249. 
United < 'olonies, title adopted, 32. 
United States of America, name adopted, 
45. 

possessions of, 315 320. 

Unmailable matter, 125. 

Useful arts, clause for promoting, 126. 
Utah, admission of, 314, 315. 

Vacancy, in board of commissioners in 
county government, 365 
in House of Representatives, 54, 55. 
in office of governor, 359. 
in office of President, 179. 
in office of Vice President, 322. 
in Senate, 59, 193. 

Van Buren, Martin, President, 325. 
Vermont, admission of, 294-297. 

Veto, bill passed over, 323. 
in States, 78. 
of Civil Rights Bill, 231. 
of President, 77, 78. 

Ohio governor has, 359. 

Vetoing a bill, 77. 

Vice Admiral, office of, 138, 139. 

Vice President, duties of, 321. 
impeachment of, 198. 
mode of electing, 169, 171, 172, 174. 
none contemplated at first, 178. 
president of Senate, 62. 
salary of, 180, 321. 
term of office, 168, 169. 
vacancy in office. 322. 

Vice Presidents, list of, i. (377). 

Villages, in Ohio, 371. 


Virginia, first representative legislature 
in America, 26, 27. 
government of, 356. 
ratification of Constitution, 263,291. 
reconstruction of, 249. 
secession of, 246. 

Volunteers, services of, 142. 

Vote, right to. (See Fifteenth Amend¬ 
ment; Citizens; Suffrage.) 

Voting, in Continental Congress, 50. 
for President and Vice President, 169^ 
177. 

Voting machine, authorized, 66 . 

Waite, Morrison R., Chief Justice Su¬ 
preme Court, 354. 

War, action of Congress in wars of 
United States, 133. 

Congress has power to make and de¬ 
clare, 132-142. 

States shall not engage in, 166 . 

War Department, 138, 327, 336-339. 

War of Rebellion, 133. 

Warrants, issuing of, 328. 

Washington, admission of, 314. 
Washington, George, commander-in¬ 
chief of army, 31, 32. 
on Articles of Confederation, 39. 
President, 172, 173, 294, 324. 
president of Philadelphia Convention, 
40. 

Watchmen in departments, 352. 

Ways and Means, Committee on, 322, 
323. 

Weather Bureau, 350. 

Webster, on banks and the States, 117. 
Weights and measures, 118, 119. 

West Virginia, admission of, 311, 312. 

formation of State of, 247, 312. 
Whisky Insurrection, 141, 155. 

Wilson, Woodrow, President, 327. 
Wisconsin, admission of, 307, 308. 
Witnesses, right of accused persons to, 
269. 

Woman suffrage, 279, 280. 

Writ of error, 224. 

Writ of habeas corpus , 152-155. 
Wyoming, admission of, 314. 

Yards and Docks, Bureau of, 342. 

Yean and nays, voting by, 70, 71. 
Yellowstone Park, 314. 












. 

. 

' 

















• ♦ 

























































































































































































































































































































































